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THE  ADMINISTRATION 
OF  DEPENDENCIES 


A  STUDY  OF 

THE   EVOLUTION  OF    THE    FEDERAL  EMPIRE, 

WITH  SPECIAL  REFERENCE  TO  AMERICAN 

COLONIAL  PROBLEMS 


BY 

ALPHEUS  H.  SNOW 


G.  P.  PUTNAM'S  SONS 

NEW  YORK  AND  LONDON 

Xlbe  IRnicherbocfter  ipress 
1902 


Copyright,  igo» 

BY 

G.  P.  PUTNAM'S  SONS 


Published,  September,  1902 


Ube  ftnicfcerbocfter  pteea,  "Rew  Corft 


THE  LIBRARY 
JDNTVERSITY  OF  CALIFORNIA 

SANTA   BARBARA 


PREFACE 

THE  study  here  undertaken  was  suggested  by  a  con- 
versation two  years  ago,  on  the  problems  arising 
from  the  recent  acquisition  of  our  Insular  Posses- 
sions, in  which  it  was  emphasized  that  there  is  one  clause 
of  the  Constitution  of  the  United  States — the  clause  by 
which  Congress  is  given  power  "to  dispose  of  and  make 
all  needful  rules  and  regulations  respecting  the  territory 
or  other  property  belonging  to  the  United  States" — to 
which  the  Supreme  Court  has  never  attached  a  definite 
and  certain  meaning.  Believing  that  the  authors  of  the 
Constitution,  in  framing  that  instrument,  almost  simul- 
taneously with  the  enactment,  by  the  American'Congress, 
of  an  ordinance  for  the  administration  of  the  Northwest 
Territory  as  a  dependency  of  the  American  Union,  must 
have  intended  the  only  clause  on  this  subject  to  express 
the  true  principles  of  the  administration  of  dependencies, 
as  they  believed  them  to  be,  I  attempted  to  ascertain  the 
correctness  of  this  belief. 

The  inquiry  necessitated  a  careful  examination  of  the 
issues  of  the  American  Revolution,  and,  as  a  knowledge 
of  the  theory  and  practice  of  the  administration  of  the 
American  Colonies  is  essential  to  the  understanding  of 
these  issues,  my  investigation  Extended  back  to  the  in- 
ception of  the  American  Colonies  in  1584.  As  a  result 
of  the  inquiry,  I  found  my  belief  fully  corroborated — the 
clause  in  question  in  fact  containing  a  statement  of  the 
principles  of  the  administration  of  dependencies  in  a 
Federal  Empire.  I  then  examined  the  American,  British, 
and  European  theory  and  practice  from  the  adoption  of 
the  Constitution  until  the  present  time,  to  discover  to 


iv  Preface 

what  extent  the  principles  embodied  in  the  clause  had 
been  recognized  and  followed,  and  what  the  result  had 
been.  The  whole  inquiry  thus  became  a  study  of  the 
evolution  of  the  Federal  Empire — a  form  of  political 
organism  which,  though  commonly  believed  to  be  of 
modern  origin,  was  in  fact  more  clearly  understood  by 
our  Revolutionary  leaders  than  by  any  other  statesmen 
before  or  since  their  time,  and  which  was  recognized  by 
them  as  being  not  only  necessary  and  proper,  but  also 
beneficent  in  its  operation,  and  hence  desirable,  for 
America  as  well  as  for  other  States. 

A.   H.  S. 
Washington,  May,  1902. 


CONTENTS 


Introduction         .         .        . 

1.  French  Administration,  1600-1787 

II.  English  Administration,  1584-1606 

III,  The  American  Charter  of  1606   . 

IV.  Imperial  Councils,  1606-1625 
V.  Imperial  Councils,  1625-1750 

VI.  Imperial  Nomenclature,  1625-1750 

VII.  The  American  Constitution  of  1750 

VIII.  Realm  or  Empire,  i  750-1 765 

IX.  The  Stamp  Act  Congress,  1765     . 

X.  Plans  of  Settlement,  1765-1767  . 

XI.  Imperial  Unity,  1768     . 

XII.  The  Imperial  Secretariat,  1768  . 

Xin.  America's  Position  Criticised,  1769 

XIV.  Realm, — not  Empire,  1769-1774    . 

XV.  The  Federal  Empire  Defined,  1774 

XVI.  America's  Ultimatum,  1774  . 

XVII.  British  Propositions,  1775    • 

XVIII.  The  Final  Issue,  1775-1776  . 

XIX.  The  American  Empire  Planned,  1776 

XX.  The  American  Empire  Declared,  1778 

XXI.  The  Dispositive  Power,  1779-1783 


PAGE 

I 

II 

24 
36 

49 
66 

91 
III 
128 

151 
169 
191 

208 
224 
241 
261 
280 
294 
318 
350 
374 
400 


vi  Contents 

CHAPTBR 

XXII.  The  Regulative  Power,  1783-1787 

XXIII.  The  Imperial  Power,  1787  , 

XXIV.  European  Administration,  1787-1902 
XXV.  British  Administration,  1780-1902 

XXVI.  American  Administration,  i 787-1902 

XXVII.  Imperial  Obligations  . 


PAGB 
419 

445 

474 
498 

537 
578 


THE  ADMINISTRATION  OF 
DEPENDENCIES 


THE  ADMINISTRATION  OF 
DEPENDENCIES 


INTRODUCTION 

GOVERNMENT  may  be  conceived  of  either  as  the 
expression  of  the  popular  will  or  as  a  science. 
Regarding  it  as  the  expression  of  the  popular 
will,  there  are  no  principles  which  determine  the  decision 
of  its  problems  other  than  those  which  are  commonly 
accepted  as  such  by  the  people,  and  each  question,  as  it 
arises,  is  to  be  decided  by  the  light  of  such  ordinary 
knowledge  and  capacity  for  reasoning  as  the  people  may 
happen  to  have  at  the  moment  when  the  decision  is  to 
be  made.  Regarding  government  as  a  science,  the 
problems  which  arise  are  decided  according  to  principles 
which  can  only  be  ascertained  by  study  and  experience, 
and  which,  if  properly  applied,  will  lead  to  a  right,  as 
distinguished  from  a  wrong  solution.  In  this  view,  the 
depositary  of  governmental  power  is  required  to  bring 
to  each  problem  a  knowledge  of  historical  and  economic 
facts  and  of  social,  political,  and  economic  principles,  a 
faculty  for  scientific  and  judicial  investigation,  and  a 
trained  capacity  for  reasoning. 

Government  so  constituted  that  the  depositaries  of 
governmental  power  are  persons  of  ordinary  common 
sense,  without  expert  knowledge  and  experience,  is 
popular  government.     Government  so  constituted  that 


2      The  Administration  of  Dependencies 

the  depositaries  of  governmental  power  are  qualified  to 
decide  the  problems  by  expert  knowledge,  investigation, 
and  reasoning,  and  actually  do  so  decide  them,  is  expert 
government. 

Popular  government  implies  an  absence  of  conditions 
concerning  the  manner  of  action.  No  such  conditions 
are  possible  in  the  nature  of  things.  A  body  of  men 
elected  to  express  the  will  of  the  people  of  the  State  acts 
necessarily  after  deliberating  concerning  facts  which  are 
of  common  knowledge  among  the  people.  The  power 
exercised  is  absolute  power,  and  the  persons  subject  to 
popular  government  are  subject  to  mere  human  will. 

Expert  government  necessarily  implies  a  condition  im- 
posed by  the  people  relating  to  the  manner  of  the  exer- 
cise of  the  power  granted  by  them  to  their  governmental 
agents.  The  condition  is  that  the  depositaries  of  govern- 
mental power  shall  exercise  their  power  according  to  the 
political  and  economic  necessity  in  each  case,  as  that 
necessity  shall  be  determined  by  expert  knowledge  and 
scientific  investigation. 

Popular  government  is  abominable  in  theory,  being  a 
government  "by  men,  not  principles,"  and  hence  a  form 
of  slavery  tempered  only  by  the  fact  that  each  individual 
is  supposed  to  participate  in  his  own  mastery;  but  it 
works  well  for  some  purposes,  because  it  encourages 
each  individual  to  interest  himself  in  the  government  of 
the  State  and  calls  into  play  individual  initiative.  Ex- 
pert government — government  "by  principles,  not  men  " 
— is  ideal  in  theory,  but  the  frailty  of  man  makes  this 
form  of  government  impracticable,  and  it  has  the  dis- 
advantage of  discouraging  individual  initiative. 

The  possibility  of  the  government  being  wholly  popu- 
lar or  wholly  expert  exists  in  every  kind  of  State.  A 
monarchical  State,  with  which,  perhaps,  the  idea  of  ex- 
pert government  is  usually  associated,  may  be  under 
popular  or  expert  government  according  as  the  monarch 


Introduction  3 

habitually  reflects  the  will  of  the  people  or  exercises  his 
power  according  to  the  expert  knowledge  of  himself  and 
his  advisers.  A  republican  and  democratic  State  may 
evidently  be  under  either  popular  or  expert  government, 
according  as  its  elected  depositaries  of  power  habitually 
bring  to  the  decision  of  all  governmental  problems  the 
common  knowledge  and  ability  and  a  purpose  to  merely 
reflect  the  will  of  the  people,  or  an  expert  knowledge 
and  an  ability  for  scientific  investigation.  What  is  true 
of  the  monarchical  and  republican  State  is  plainly  also 
true  of  the  oligarchical  State.  Nor  does  it  make  any 
difference  whether  the  power  of  the  governmental  agencies 
is  centralized  or  decentralized — the  depositaries  of  power 
may  plainly  either  reflect  the  will  of  the  people  or  may 
act  expertly.  In  the  Federal  State,  where  the  people, 
by  their  written  Constitution,  divide  the  supreme  power 
between  the  Central  Government  and  the  Governments 
chosen  by  the  Member-States,  all  these  Governments 
may  evidently  either  reflect  the  will  of  the  people  or  may 
act  expertly.  Nor  does  it  make  any  difference  whether 
the  spheres  of  governmental  power  within  which  the 
governmental  agencies  in  the  State  act  are  definitely- 
limited  by  written  Constitution  or  are  left  with  indefinite 
limits  under  an  unwritten  Constitution ; — the  depositaries 
of  power  in  either  case  may  either  reflect  the  will  of  the 
people  or  may  act  expertly.  In  determining  whether 
their  governmental  agents  shall  be  obliged  to  reflect  the 
popular  will  or  shall  be  obliged  to  act  expertly,  the  peo- 
ple of  each  State  are  actuated  by  considerations  wholly- 
separate  and  apart  from  those  relating  to  the  form  of 
government  which  they  may  have  chosen  to  adopt.  The 
condition  that  all  governmental  action  shall  be  based  on 
expert  knowledge  and  investigation  will  be  omitted  or  im- 
posed by  them  according  to  the  theory  as  to  the  nature 
of  all  government  which  prevails  among  them.  If  they 
regard  government  as  merely  the  expression  of  the  popu- 


4      The  Administration  of  Dependencies 

lar  will,  they  will  omit  the  condition;  if  they  regard  it  as 
wholly  or  in  part  a  science,  they  will  inmpose  the  con- 
dition. 

As  matter  of  fact,  no  States  do  commit  themselves 
wholly  to  the  theory  that  government  is  the  expression 
of  the  popular  will  or  wholly  to  the  theory  that  it  is  a 
science.  They  recognize  that  it  is  not  exactly  either  the 
one  or  the  other,  but  is  a  combination  of  both — that 
although  there  are  principles,  they  are  never  capable  of 
exact  application,  and  that  their  application  must  vary  to 
some  extent  according  to  the  common  will  and  sentiment 
of  the  people  to  whom  they  are  applied.  The  efforts  of 
modern  statesmanship  are  directed  therefore  toward  pre- 
serving the  two  conceptions  in  the  State  side  by  side,  and 
towards  providing  instrumentalities  according  to  which 
the  conclusions  arrived  at  by  examining  from  each  stand- 
point each  question  as  it  arises  may  be  formulated  and 
the  one  conclusion  used  to  correct  the  other.  Hence  in 
the  modern  State,  by  its  Constitution,  written  or  un- 
written, conceived  of  as  emanating  from  all  the  people 
of  the  State,  the  Government  is  divided  into  two  parts 
or  branches,  one  of  which  is  so  organized  as  to  reflect  the 
will  of  the  people  and  the  other  so  organized  as  to  decide 
questions  of  government  expertly.  By  one  or  the  other 
of  these  two  great  branches  of  the  Government,  in  the 
last  analysis,  all  the  powers  of  the  State,  of  whatever 
kind,  must  be  exercised. 

The  people  of  a  State  may  require  those  two  branches 
to  be  related  to  each  other  in  any  way  they  see  fit.  The 
powers  of  government  may  therefore  be  divided  between 
these  two  agencies,  so  that  they  are  independent  co- 
agents,  each  having  a  distinct  sphere  of  action.  The 
legislative  power — the  power  of  changing  the  law, — the 
judiciary  power — the  power  of  interpreting  the  law, — 
and  the  executive  power — the  power  of  executing  the 
law, — may  thus  be  divided  between  the  two  branches  so 


Introduction  5 

that  the  popular  branch  shall  be  the  Legislature  and 
Judiciary  and  the  expert  branch  the  Executive,  or  so 
that  the  popular  branch  shall  be  the  Legislature  and  Ex- 
ecutive and  the  expert  branch  the  Judiciary,  or  so  that 
the  popular  branch  shall  be  the  Executive  and  the  Ju- 
diciary and  the  expert  branch  the  Legislature ;  or  so  that 
the  expert  branch  shall  be  the  Legislature  and  the  Ju- 
diciary and  the  popular  branch  the  Executive,  or  so 
that  the  expert  branch  shall  be  the  Legislature  and  the 
Executive  and  the  popular  branch  the  Judiciary,  or  so 
that  the  expert  branch  shall  be  the  Judiciary  and  the 
Executive  and  the  popular  branch  the  Legislature.  The 
last  is  the  usual  arrangement. 

The  people  of  a  State  may  also  divide  the  govern- 
mental power  among  their  governmental  agents  on  the 
principle  that  the  one  of  the  two  branches  shall  exercise 
all  the  powers  of  government — legislative,  judicial,  and 
executive  —  and  the  other  shall  superintend  it.  All 
powers  of  government  may  thus  be  conferred  on  the  ex- 
pert branch  of  the  Government,  and  the  popular  branch 
may  superintend ;  or  all  powers  may  be  conferred  on  the 
popular  branch  and  the  expert  branch  may  superintend ; 
or  a  part  of  the  powers  of  government  may  be  conferred 
on  one  branch  subject  to  the  superintendence  of  the  other 
and  the  other  powers  remain  divided  so  that  each  branch 
as  respects  them  is  independent  of  the  other. 

The  superintendence  may  occur  in  many  different  ways 
— by  advice  given  before  the  act  or  after  the  act  is  formu- 
lated and  before  it  becomes  final,  by  negativing  the  act, 
by  re-examining  the  whole  subject  and  making  a  new 
decision,  by  refusing  money  supplies  necessary  to  carry 
out  proposed  action,  or  by  impeaching  and  removing 
from  office  the  official  who  has  performed,  or  who  threat- 
ens to  perform,  the  act  disapproved  by  the  superintend- 
ing body. 

Though  it  is  said  that  the  popular  branch  of  the  Gov- 


6      The  Administration  of  Dependencies 

ernment  of  the  modern  State  is  independent  of  the  expert 
branch,  and  vice  versa,  this  is  in  fact  never  the  case,  but 
each  exercises  some  supervision  over  the  other.  The 
expert  branch,  though  having  no  legislative  power,  ad- 
vises the  popular  branch  concerning  proposed  changes  to 
be  made  in  the  law  and  refuses  to  recognize  such  changes 
if  after  careful  interpretation  they  conflict  with  the  funda- 
mental law  which  the  people  have  made  unchangeable  by 
the  Legislature.  The  popular  branch  controls  the  Execu- 
tive by  impeachment,  and  by  refusing  to  supply  money 
by  taxation.  Division  of  powers  between  the  popular 
and  the  expert  branch  and  mutual  superintendence  are 
equally  interwoven  in  the  Constitutions  of  modern  States. 
A  State  is  a  person,  having  a  body  and  personality 
composed  of  specific  lands  and  the  populations  inhabiting 
them.  As  respects  these  specific  lands  and  populations, 
the  power  of  the  State  is  undoubtedly  to  be  classified  in 
the  usual  manner  as  legislative,  judicial  and  executive. 
But  the  lands  and  populations  which  constitute  the  body 
and  personality  of  the  State  are  not  the  only  lands  and 
populations  over  which  it  may  exercise  power.  It  is  a  fact 
that  the  State  may  and  does  exercise  power  over  lands  and 
populations  which  are  not,  and  cannot,  in  the  jiature  of 
things,  be  a  part  of  the  body  and  personality  of  the  State, 
and  that  it  may  be  in  a  permanent  relationship  to  these 
lands  and  populations  of  such  a  kind  that  it  must  exercise 
power  over  them  permanently.  External  lands  and  popu- 
lations may  be  recognized,  by  the  State,  as  States  for- 
eign to  itself,  with  which  it  may  contract ;  and  it  may, 
therefore,  recognize  itself  as  under  an  implied  contract 
by  which  it  is  obligated  to  the  external  populations 
which  are  permanently  under  its  control.  Under  such 
express  or  implied  contracts,  the  State  may  be  obligated 
to  render  permanent  services  to  these  populations.  Such 
services  may  be  of  any  kind  whatsoever,  and  do  not 
necessarily  involve  the  doing  of  acts  which  can  be  cer- 


Introduction  7 

tainly  described  as  either  legislative,  judicial,  or  execu- 
tive acts  of  the  State.  In  the  performance  of  such 
functions,  the  agents  of  the  State  are  not  changing  the 
law  of  the  State,  nor  interpreting  it,  nor  executing  it. 
They  are  wielding  the  power  of  the  State  as  if  the  State 
were  a  person.  They  represent  the  State,  as  a  political 
person,  in  the  performance  of  services  towards  another 
State,  as  a  political  person.  The  acts  of  the  State  done 
in  the  performance  of  those  services  are  all  legislative, 
judicial  or  executive  acts,  but  they  are  legislative,  judi- 
cial or  executive  acts  done  not  by  the  State  for  itself, 
but  by  the  State  for  another  State.  As  all  agencies  of 
the  State  belong  either  to  the  popular  or  the  expert 
branch  of  the  Government,  the  State,  in  performing 
such  services,  necessarily  acts  either  through  the  popular 
or  the  expert  branch  exclusively,  or  through  one  super- 
intended by  the  other. 

All  lands  and  populations  subject  to  the  power  of  a 
State,  but  not  so  related  to  it  that  they  form  by  common 
consent  an  integral  part  of  the  body  and  personality  of 
the  State,  which  are  called  the  dependencies  of  the  State, 
are,  therefore,  capable  of  being  viewed,  in  their  relations 
to  the  State,  in  two  different  ways.  They  may  be  re- 
garded as  mere  prolongations  of  the  soil  of  the  State,  and 
its  powers  over  them  may  be  regarded  as  mere  extensions 
of  the  legislative,  judiciary  and  executive  powers  of  the 
State.  In  this  view,  all  inherent  political  personality  of 
the  dependencies  is  denied.  They  are  not  States,  but 
mere  extremities  of  the  body  and  personality  of  the 
State,  in  which  the  heart-action  of  the  State  is  less  strong 
than  at  the  centre.  They  may  also  be  regarded  as  States 
distinct  from  and  external  to  the  State.  In  this  view 
every  dependent  population  within  specific  territorial 
limits  determined  by  the  natural  circumstances  and  con- 
ditions is  regarded  as,  by  the  nature  of  things,  a  State, 
whether  it  has  the  capacity  to  establish  and  the  power  to 


8      The  Administration  of  Dependencies 

maintain  a  distinct  Government  for  itself  as  a  State,  or 
not.  On  this  conception,  it  is  evident  that  the  theory 
that  the  power  exercised  is  a  mere  prolongation  or  ex- 
tension of  the  legislative,  judicial,  and  executive  power 
as  it  is  exercised  by  the  State  within  itself  is  not 
applicable.  The  State  does  not  exercise  its  power  di- 
rectly upon  the  individual  inhabitants  of  the  dependen- 
cies. There  is  an  intervening  personality  —  a  State 
—  between  the  State  and  each  individual  inhabitant  of 
the  dependencies,  and  the  State  substitutes  itself,  by  its 
own  will  or  by  contract  express  or  implied,  for  this  in- 
tervening personality,  and  exercises  within  the  depend- 
ency the  legislative,  judicial,  and  executive  power  in 
substitution  for  this  personality. 

It  is  even  possible  to  go  so  far  in  regarding  depend- 
encies as  naturally  States,  as  to  regard  the  State  as  act- 
ing within  the  dependencies  wholly  by  their  permission. 
Such  a  permissive  power  is  plainly  different  in  character 
from  the  legislative,  judicial,  and  executive  powers  which 
the  State  exercises  within  itself. 

A  State  and  its  dependencies,  in  whatever  light  the 
latter  are  regarded,  constitute,  according  to  the  accepted 
public  law  of  the  civilized  world,  an  Empire.  The  old 
conception  of  an  Empire  as  a  Kingdom  composed  of 
Kingdoms,  and  of  an  Emperor  as  a  King  who  rules  over 
other  Kings,  is  passing  away,  and  in  its  stead  has  come 
the  conception  of  the  Empire  as  a  State  composed  of 
distinct  and  often  widely  separated  populations  or  States, 
of  which  a  State  is  the  Central  Government  or  Emperor. 
The  State  so  acting  as  the  Central  Government  or  Em- 
peror— whatever  may  be  its  inner  constitution,  whether 
monarchical,  oligarchical,  republican,  whether  federal  or 
unitary — is  called  the  Imperial  State.  The  study  of  the 
administration  of  dependencies  is  in  fact,  therefore,  the 
study  of  the  form  and  nature  of  the  modern  Empire. 

The  problem  of  the  administration  of  dependencies  in- 


Introduction  9 

volves,  first  of  all,  reaching  a  definite  conclusion  on  the 
point  whether  dependencies  are  prolongations  of  the  soil 
of  the  State,  or  whether  they  are,  in  the  nature  of  things, 
within  territorial  limits  determined  by  natural  circum- 
stances and  conditions.  States  in  permanent  relationship 
with  the  State.  Even  if  it  be  granted  that  they  are 
States,  it  must  be  settled  whether  they  are  in  a  non- 
contractual or  a  contractual  relationship,  and  if  in  a  con- 
tractual relationship,  whether  under  an  implied  or  an 
express  contract.  If  it  shall  be  concluded  that  depend- 
encies are  essentially  States  in  a  permanent  contractual 
(that  is,  federal)  relationship  with  the  State,  the  question 
will  arise  whether  the  power  which  the  State  exercises 
over  its  dependencies  is  in  its  essence  strictly  legislative, 
judicial,  or  executive,  or  a  power  distinct  from,  though 
inclusive  of,  all  these  powers,  and  whether  the  power  can 
best  be  exercised  by  the  popular  or  the  expert  branch  of 
the  Government  of  the  State,  and  in  what  manner  the 
one  should  act  and  the  other  superintend.  If  it  shall  be 
concluded  that  the  administration  of  dependencies  is  a 
kind  of  governmental  work  which  can  be  best  performed 
through  the  expert  branch  of  the  Government  under  the 
superintendence  of  the  popular  branch,  it  will  be  neces- 
sary to  consider  the  form  which  the  instrumentalities  of 
expert  Government  must  take,  in  order  to  best  fulfil  the 
functions  and  obligations  of  the  Imperial  State. 

This  requires  a  study  of  the  whole  administration  of 
dependencies  by  States  from  the  time  that  the  personality 
of  States  began  to  be  recognized  and  it  was  possible  to 
distinguish  between  the  State  and  its  dependencies, — 
that  is,  from  the  beginning  of  the  seventeenth  century. 
Starting  at  this  point,  it  is  necessary  to  select  out  of  the 
multitude  of  acts  and  documents  those  which  have,  by 
the  common  consent  of  the  successors  of  the  actors  of 
them,  had  an  effect  in  formulating  opinion  concerning 
the  relationship  of  the  State  to   its  dependencies  and 


lo    The  Administration  of  Dependencies 

concerning  the  character  and  extent  of  its  power  over 
them ;  and  to  study  these  acts  and  documents  in  the  light 
of  modern  political  science.  France  and  England  furnish 
the  earliest  examples  of  States  consciously  recognizing 
themselves  as  legal  and  political  persons,  and  as  such 
entering  into  a  permanent  relationship  with  external  do- 
minions and  countries  and  endeavoring  to  maintain  the 
relationship  unbroken.  The  experience  and  thought  of 
these  States,  therefore,  naturally  demand  first  attention. 


CHAPTER   I 

FRENCH   ADMINISTRATION,    160O-I787 

FOR  eight  centuries  before  the  French  Revolution,  the 
King,  in  exercising  the  supreme  power,  stood,  ac- 
cording to  the  theory  of  French  jurisprudence,  in  a 
fiduciary  relation  to  the  people,  being  regarded  as  under  an 
obligation  to  decide  problems  of  government  scientifically 
and  judicially.  No  written  Constitution  had  ever  been 
dreamed  of.  No  system  of  popular  elections  was  consid- 
ered desirable.  Yet  there  was,  until  the  seventeenth 
century,  at  least,  a  good  and  orderly  government.  France 
was  a  great  nation  and  successfully  governed  throughout 
a  great  domain  until  the  middle  of  the  eighteenth 
century. 

Vicomte  d'Avenel,  in  his  Richelieu  et  la  Monarchie 
Absolue,  published  in  1895,  speaking  of  the  Constitution 
of  France  during  the  period  of  the  traditional  monarchy, 
— from  987  to  1620, — quotes  with  approval  the  saying  of 
Bodin  in  his  treatise  De  la  R^publique,  published  in  1580: 

The  royal  or  legitimate  monarchy  is  that  in  which  the  sub- 
ject obeys  the  laws  of  the  monarch  and  the  monarch  the  laws 
of  nature,  leaving  to  the  subjects  their  natural  liberty  and 
their  private  property. 

Vicomte  d'Avenel,  in  the  course  of  his  remarks  on  the 
way  in  which  these  principles  were  worked  out  during 
the  traditional  monarchy,  says: 

The  relationship  between  the  King  and  the  subject  differed 
from  that  between  lord  and  vassal,  in  that  the  King  was  the 


12    The  Administration  of  Dependencies 

only  lord  in  France  who  made  oath  to  his  vassals. 
There  were  in  France  sovereign  taws,  which  were  supreme 
over  the  power  of  the  King,  and  according  to  which  he  was 
obliged  to  direct  his  political  life;  in  his  private  life,  the  King 
was  only  a  private  citizen  before  the  proper  courts.  .  ,  . 
The  fundamental  laws  of  the  Kingdom  were  nothing  but 
legal  usages,  which  were  binding  on  the  monarchs  themselves. 
Whether  written  or  unwritten,  whether  enacted  by  a  previous 
King  or  deriving  their  force  from  tradition  only,  these  laws 
were  regarded  as  unchangeable.  "  They  have  been  observed 
for  so  long,"  says  Seyssel,  in  15 19,  in  his  book  La  Grande 
Monarchie  de  France^  "  that  the  Kings  do  not  undertake  to  in- 
terfere with  them,  and  when  they  wish  to  do  so,  no  one  obeys 
their  commands."  .  .  .  Although  the  King  possessed  the 
legislative  power,  nevertheless  if  he  saw  fit  to  change,  by  edict, 
certain  ancient  arrangements  {^dispositions)  ratified  by  public 
opinion,  he  was  reproached  with  having  violated  the  laws  of 
the  State,  as  if  the  consecration  of  time  had  given  them  an  in- 
destructible force.  This  regard  for  tradition  appears  inces- 
santly in  the  writings  and  public  discourses  of  the  period. 
Under  Louis  XIII.  [from  1610  to  1643,  during  which  time, 
under  the  influence  of  Richelieu,  the  traditional  monarchy 
ceased  to  exist  except  in  theory],  writers  and  public  speakers 
were  in  the  habit  of  citing  freely,  as  authorities,  the  acts,  the 
charters,  or  the  bulls  of  the  first  Capetian  Kings,  and  even 
those  of  earlier  date.  In  the  books,  when  a  subject  was  ex- 
amined, the  author  went  back  to  the  times  of  the  Greeks  and 
Romans.  ...  In  the  matter  of  taxation,  the  right  of  the 
King  was  remarkably  limited.  The  States-General  not  only 
discussed  the  necessity  of  the  aide,  but  also  determined  the 
manner  in  which  it  should  be  levied  and  collected.  .  .  . 
The  principle  that  taxes  are  not  legal  except  by  consent  of  the 
people  who  pay  them  was  violated  more  than  once  before  the 
time  of  Louis  XIII.,  but  it  had  not  ceased  to  be  recognized 
even  then.  It  was  the  doctrine  of  Old  France.  Every  one 
knows  what  happened  later  on,  but  no  one,  in  those  old  days, 
could  have  imagined  the  * '  taillable  et  corvSable  d,  merci ' '  of 
Louis  XIV. 


French  Administration,  1600- 1787      13 

From  the  beginning  of  the  Capetian  monarchy,  we  observe 
two  distinct  kinds  of  legislative  acts  of  the  King;  one  relating 
to  the  domains  of  the  King,  in  which  he  speaks  in  his  own 
name;  the  other  relating  to  the  whole  of  France,  emanating 
from  the  united  action  of  the  King  and  Barons, — often  even 
from  that  of  the  King  and  the  people.  .  .  .  Seyssel  thinks 
that  "it  is  necessary  the  important  affairs  of  the  Kingdom 
should  be  consulted  upon  by  a  Council  of  personages  drawn 
from  the  different  Estates,  both  ecclesiastical  and  secular." 
Bodin  regards  it  as  less  dangerous  to  have  a  bad  King,  guided 
by  a  good  Council,  than  a  good  King,  guided  by  a  bad  Council. 

Throughout  the  existence  of  the  traditional  monarchy, 
the  King  acted  by  the  advice  of  expert  counsellors, 
some  of  whom  acted  as  his  Ministers. 

During  this  period,  this  theory  of  government  became 
crystallized  in  the  French  language,  and  the  study  of  the 
words  they  used  to  express  the  exercise  of  the  supreme 
power  is,  in  fact,  a  study  of  the  unwritten  Constitution  of 
France.  The  two  words  which  expressed  the  exercise  of 
the  supreme  power  were  the  verbs  ordonner  and  disposer. 
Of  these  the  latter  was  the  more  strictly  generic,  though 
the  former  was  used  also  in  a  generic  sense.  The  Grand 
Vocabulaire  Franqois  of  1770  treats  the  words  as  syn- 
onymes,  defining  ordonnance  (ordinance)  as  a  disposition 
(disposition). 

Vattel,  writing  of  the  general  public  law  in  1758,  in 
his  great  work,  The  Law  of  Nations,  said  of  the  power 
of  the  state : 

Le  pays  qu'une  nation  habite  ...  est  I'^tablissement 
de  la  nation ;  elle  y  a  un  droit  propre  et  exclusif . 

Ce  droit  comprend  deux  choses:  i.  Le  domaine,  en  vertu 
duquel  la  nation  peut  user  seule  de  ce  pays  pour  ses  besoins, 
en  disposer  et  en  tirer  tout  1' usage  auquel  il  est  propre.  2. 
L'empire,  ou  le  droit  du  souverain  commandement,  par  lequel 
elle  ordonne  et  dispose  k  son  volunt^  de  tout  ce  qui  se  passe 
dans  le  pays. 


14    The  Administration  of  Dependencies 

A  translation  of  which  is : 

The  country  which  a  nation  inhabits  ...  is  the  estab- 
lishment of  the  nation;  in  this  country  it  has  a  proprietary 
and  exclusive  right. 

This  right  includes:  i.  The  domain,  by  virtue  of  which 
the  nation  may  exclusively  use  the  material  resources  of  the 
country  for  its  needs,  may  dispose  of  them,  and  may  draw 
from  them  every  kind  of  utility  which  pertains  to  them.  2. 
The  empire,  or  the  right  of  supreme  command  over  persons, 
by  virtue  of  which  it  orders  and  disposes,  according  to  its 
will,  of  the  whole  intercourse  and  commerce  of  the  country. 

Every  act  of  the  depositary  of  the  supreme  power  in  a 
State,  therefore,  according  to  Vattel,  whether  it  relates 
to  the  partition  of  the  soil  or  other  arrangements  con- 
cerning it,  or  to  the  use  by  the  State  of  private  property 
for  public  uses,  or  to  grants  of  governmental  authority 
over  persons,  or  to  the  control  of  the  action  of  persons 
by  legislative  action,  was  properly  described,  in  1758,  by 
the  expression  "  h  disposer  de  " — "  to  dispose  of." 

Vattel's  definition  of  the  right  of  the  depositary  of  the 
supreme  power  in  the  state  is  called  "  classic  "  by  the 
editor  of  the  great  French  Encyclopaedia  of  Law  (Dalloz, 
Repertoire  de  Legislation,  de  Doctrine,  et  de  yurisprudence). 

The  verb  disposer  (our  word  "  dispose  ")  and  the  ex- 
pression disposer  de  (our  expression  "  dispose  of  ")  carried 
with  them  the  idea,  brought  over  from  the  Latin  word 
"  dispono,"  of  conforming  things  to  a  certain  order  in 
the  ends  of  propriety  and  justice,  and  implied  that  in 
each  case  there  was  some  orderly  and  proper  course  of 
action,  as  contradistinguished  from  all  other  possible 
courses,  and  that  the  person  who  "  disposed  of  "  the  par- 
ticular case  occupied  himself  with  ascertaining,  either 
from  expert  knowledge  or  by  a  new  investigation,  the  or- 
derly and  proper  course,  and,  having  discovered  it,  ap- 
plied it  in  the  particular  case.     His  action  was  called  a 


French  Administration,  1 600-1 787      15 

"  disposition  of  "  the  matter.  He  "  disposed  of  "  prob- 
lems of  motion  or  action;  he  "  disposed  "  things  or  ac- 
tions by  setting  them  in  their  proper  order. 

The  word  disposer  and  the  expression  disposer  de  were, 
therefore,  those  which  were  peculiarly  appropriate  to  ex- 
press the  exercise  of  supreme  power  which  was  required 
by  the  Constitution  to  be  exercised  expertly.  They  had 
no  reference  to  the  extent  or  the  sphere  of  the  power. 
The  sphere  or  extent  might  be  small  or  great,  with 
specific  limits  or  with  indefinite.  If  the  power  within  the 
sphere  of  action  was  exercised  expertly,  it  was  regarded 
as  disposition.  Distinguished  from  disposition  was  l^gis- 
lation,  which  implied  the  making  of  commands  accord- 
ing to  the  mere  will  of  the  depositary  of  the  supreme 
power — that  is,  without  the  recognition  of  any  condition 
as  to  the  manner  of  the  exercise  of  the  power.  The 
word  juridiction  was  more  commonly  used  to  describe 
supreme  power  exercised  by  way  of  disposition,  and 
quite  properly,  when  the  literal  meaning  of  the  word — 
"  the  declaring  of  the  right  in  the  particular  case  " — is 
considered.  The  supreme  power  exercised  within  the 
state  was  spoken  of  as  juridiction,  as  distinguished  from 
the  supreme  power  exercised  outside  the  state  and  with 
reference  to  international  questions,  which  was  called 
souverain^t^.  The  word  juridiction  was  used  to  express 
the  exercise  of  the  power,  the  word  disposition  to  describe 
the  power  itself.  The  King  in  exercising  the  power  of 
disposition  was  said  to  have  juridiction  over  the  land  and 
things  concerning  the  transfer  of  which,  and  the  persons 
concerning  the  actions  of  whom,  disposition  was  made. 

The  French  for  many  centuries  past  have  commonly 
used  the  expression  les  dispositions  des  lois,  where  we 
should  say  "  the  provisions  of  the  laws."  Doubtless 
both  expressions  are  relics  of  the  conception  of  the  moral 
obligation  attached  to  the  exercise  of  the  supreme  power 
requiring  that  it  shall  be  exercised  not  according  to  mere 


i6    The  Administration  of  Dependencies 

will,  but  according  to  principles  carefully  ascertained  and 
properly  applied. 

Although  the  legislative  acts  of  the  King,  as  compared 
one  with  another,  were  classified  as  ordonnances,  which 
were  fundamental  laws  or  laws  of  great  importance,  ^dits 
(edicts),  which  were  acts  of  ordinary  legislation  to  meet 
changing  circumstances,  and  declarations  (declarations), 
which  were  interpretations  or  explanations  of  existing 
laws,  they  were  all  called,  as  distinguished  from  the  acts 
of  subordinate  officers  and  tribunals,  ordonnances.  All 
acts  of  subordinate  officers  and  tribunals  were  called 
r^glements  (regulations).  Dispositions  made  by  the 
King  usually  related  to  matters  of  public  concern, 
while  those  made  by  subordinate  officers  and  tribunals 
usually  related  to  matters  of  private  concern — that  is, 
directly  affected  individual  life,  liberty,  or  property. 
Hence,  in  process  of  time,  the  acts  of  the  King  relating 
to  matters  of  private  or  particular  concern  came  to  be 
called  rdglemenis ;  and  thus  the  acts  of  the  King  became 
divided  into  two  kinds,  ordonnances  and  r^gletnents. 

The  power  of  disposition  of  the  King  extended,  of 
course,  to  everything  that  was  recognized  as  within  the 
power  of  the  State.  The  King,  therefore,  "disposed  of  " 
what  Vattel  called  "the  domain  "  and  "the  empire"  of 
the  State.  Dispositions  of  the  domain  were  the  partition  of 
unoccupied  land  for  the  purpose  of  settlement  and  deter- 
minations of  the  right  of  partition  or  ownership  of  settled 
lands;  and,  as  the  domain  included  the  power  not  only 
over  the  land,  but  of  every  product  or  division  of  the 
land,  the  disposition  of  it  included  power  over  all  private 
property  exercised  by  way  of  seizure  for  public  use 
(expropriation),  or  for  the  support  of  the  government 
(taxation).  Dispositions  of  the  empire  were  the  parti- 
tion of  governmental  power  over  the  actions  of  persons 
to  officers,  tribunals,  and  subordinate  governments  of 
municipalities  and   administrative  districts.     The  Local 


French  Administration,  1600- 1787      17 

Assemblies  were  called  Parleinents  (Parliaments),  Cours 
(Courts),  or  Conseils  (Councils),  and  were  consultative  and 
advisory  bodies  only,  with  the  right  to  ofifer  criticism,  re- 
monstrance, or  protest  against  any  proposed  disposition 
by  way  of  ordonnance  or  r^glement  before  registering  it  on 
their  journals,  but  not  to  obstruct  the  execution  of  a  law 
after  the  King  had  heard  and  acted  upon  the  remonstrance. 
The  power  of  the  King  over  the  dependencies  seems 
never  to  have  been  doubted,  and  it  was  considered  to  be 
subject  to  the  same  moral  obligation  as  in  France  itself. 
Thus,  M.  £milien  Petit,  writing  in  1778,  when  the  ques- 
tion as  to  the  character  and  extent  of  the  power  of  the 
metropole  over  its  dependencies  was  the  burning  ques- 
tion of  the  day,  carefully  refrains,  in  his  Dissertations  sur 
le  Droit  Public  des  Colonies  Frangoises,  Espagnoles  et  An- 
gloises,  from  claiming  unlimited  and  unconditional  power 
for  the  King,  but  contents  himself  with  specifying  what 
the  King  may  do  in  the  dependencies.     He  says: 

The  government  of  the  French  colonies  is  entirely  in  the 
hands  of  the  King.  To  his  Majesty  belongs  the  command  of 
the  military  and  naval  forces;  the  nomination  of  local  admin- 
istrators, governors  and  intendants;  the  choice  of  judges  and 
provision  for  them ;  the  determination  of  the  respective  powers 
of  officials ;  the  defence  and  protection  of  the  colonies ;  the 
power  to  cause  their  inhabitants  to  dwell  together  peaceably 
and  religiously;  the  maintenance  of  their  governments;  the 
security  of  their  commerce;  the  reformation  of  judgments 
rendered  by  administrative  officials  or  by  local  councils;  and 
the  power  of  ordaining  or  permitting  the  levy  of  taxes. 

These  objects  of  the  exercise  of  the  sovereign  authority  by 
our  Kings  are  announced  to  the  colonists  by  the  regulation  of 
167 1,  by  the  edict  of  1674,  and  by  subsequent  laws  regarding 
the  administration  and  government  of  the  colonies,  derived 
from  these  two  ordinances. 

The  Constitution  and  laws  of  France  were  regarded  as 
in  force  in  the  dependencies  except  in  so  far  as  they  were 


1 8    The  Administration  of  Dependencies 

rendered  inapplicable  by  the  local  circumstances  and  con- 
ditions. The  King,  in  his  expert  management  of  the 
dependencies,  took  care  to  see  that  this  principle  was 
enforced,  and  the  difficulty  and  delicacy  of  the  problems 
growing  out  of  the  adjustment  necessitated  by  the  appli- 
cation of  this  principle  were  fully  recognized — the  great- 
est statesmen  of  the  time  giving  their  personal  attention 
to  the  subject.  Richelieu  and  Colbert,  for  instance,  dur- 
ing the  seventeenth  century,  devoted  a  great  part  of 
their  eminent  abilities  to  the  solution  of  colonial  prob- 
lems, with  the  result  that  the  connection  between  France 
and  its  colonies  was  kept  harmonious,  that  the  relation- 
ship was  at  the  same  time  profitable  to  it  and  beneficial 
to  them,  and  that  France  attained  to  a  high  position 
among  the  powers  of  Europe. 

In  the  beginning  of  French  colonization,  this  process 
of  adjustment  between  France  and  its  dependencies 
was  clearly  apparent.  The  original  French  colonizing 
schemes  took  the  form  of  the  creation  of  companies  by 
royal  ordinance  for  the  purpose  of  transporting  persons  to 
the  region  to  be  colonized  and  developing  its  resources,  the 
consideration  for  their  agreement  to  transport  being  the 
grant  of  large  tracts  of  land  which  they  were  at  liberty  to 
sell  to  the  colonists.  The  companies  were  legally  located 
in  France  and  were  as  much  subject  to  the  Constitution, 
laws,  and  customs  of  France  in  carrying  on  their  business 
as  were  any  other  corporations  of  the  Realm.  From  the 
necessities  of  the  case,  they  were  given  jurisdiction  over 
the  soil,  things,  and  persons  within  the  colony,  sufficient 
to  enable  them  to  keep  order  and  to  protect  the  settle- 
ments from  attack.  Sometimes  a  representative  of  the 
King  in  the  colony  was  provided.  The  revenue  from 
the  mere  sales  of  land  proving  inadequate,  there  was  soon 
granted  to  these  companies  the  monopoly  of  buying  the 
products  of  the  colonies  and  of  selling  them  in  France. 
From   these   grants   of    the    privileges   of    government 


French  Administration,  1 600-1 787       19 

and  of  monopoly,  these  companies  were  called  "  priv- 
ileged companies  "  {compagnies  privildgi^es). 

The  charters,  and  hence  the  privileges,  were  usually 
granted  for  a  term  of  years,  and  at  the  expiration  of  the 
term  the  King  was  at  liberty  to  resume  the  powers 
granted  or  to  grant  them  again  on  the  same  or  other  con- 
ditions, so  that,  from  time  to  time,  adjustments  were 
made  in  which  the  respective  interests  of  France  and  the 
dependencies  were  considered. 

Later,  when  the  monopolies  began  to  grow  very  valu- 
able, and  the  colonies  began  to  complain  of  enriching 
private  individuals  when  the  services  of  protection  for 
which  they  were  demanding  tribute  were  really  performed 
by  the  French  Government,  the  charters  were  not  re- 
newed on  their  expiration,  and  the  French  Government 
substituted  itself  to  all  the  rights  and  obligations  of  the 
colonizing  company  and  took  the  whole  disposition  of 
the  property  and  affairs,  formerly  administered  by  the 
company,  into  its  hands.  Thus,  after  this  change,  there 
was  still  no  question  but  that  the  Constitution,  laws,  and 
customs  of  France  were  in  force  in  the  colonies  to  the  ex- 
tent that  they  were  not  rendered  inapplicable  by  local 
circumstances  and  conditions.  The  theory  of  the  French 
Government  that  all  governmental  power  was  to  be  exer- 
cised expertly  and  scientifically  stood  France  here  in 
good  stead.  The  adjustments  and  readjustments  be- 
tween the  French  Constitution,  laws,  and  customs  on  the 
one  hand  and  the  local  circumstances  and  conditions  on 
the  other  were  made  judiciously  and  advantageously. 
The  chief  need  of  the  colonies  was  physical  protection 
against  outside  interference,  not  only  from  the  native 
tribes,  but  from  civilized  foreign  States.  The  cost  of  such 
protection  was  much  more  than  it  would  have  been  had 
the  colony  been  an  integral  part  of  France.  The  method 
of  collecting  payment  for  such  protection  by  process  of 
taxation  which  prevailed  in  France  was  impracticable  for 


20     The  Administration  of  Dependencies 

many  reasons,  and  so  it  was  considered  equitable  that 
this  extra  expense  should  be  compensated  for  by  indi- 
rect taxation  by  way  of  imposts.  Certain  obligations 
were  therefore  imposed  on  the  dependencies  calculated 
to  return  to  France  indirectly  this  extra  expense. 
The  trade  between  France  and  its  dependencies  was 
treated  as  coasting  trade  and  obliged  to  be  carried  in 
French  vessels,  thus  allowing  the  French  ship-owners  to 
make  an  extra  profit.  The  manufacturing  by  the  colo- 
nists of  their  raw  materials  was  forbidden,  and  this  man- 
ufacture was  required  to  be  done  in  France,  thus  giving 
French  manufacturers  an  extra  profit  in  this  way,  and 
the  colonists  were  forbidden  to  buy  anything  which  could 
be  manufactured  in  France  except  from  the  French  man- 
ufacturers, thus  giving  them  a  profit  in  another  way. 
The  colonists  were  obliged  to  sell  all  their  products  in 
France,  and  the  whole  French  people  thus  enabled  to  de- 
rive a  profit  by  the  saving  in  price  over  that  which  it  would 
have  been  had  the  colonists  been  able  to  sell  in  the  dearest 
market ;  but,  in  order  that  the  colonists  might  have  the 
best  chance  possible  in  the  French  market,  they  were  given 
an  advantage  with  their  products  over  foreign  States  by 
difTerential  duties  imposed  against  the  foreign  products. 
All  this  complicated  adjustment,  necessitated  bv  the 
fact  that  the  Constitution,  laws,  and  customs  of  France 
regarding  taxation  were  inapplicable  by  reason  of  the 
local  circumstances  and  conditions,  was  given  the  name 
of  "the  colonial  pact  "  {le pacte  colonial').  Because  it  was 
a  system  of  mutual  restrictions  to  some  extent,  and  be- 
cause it  involved  the  doing  of  something  on  the  one  side 
and  the  doing  of  something  on  the  other  in  return,  the 
arrangement  has  some  of  the  outward  form  and  appear- 
ance of  a  contract,  but  it  was  never  inferred  from  this  re- 
semblance that  the  powers  of  France  over  its  dependencies 
were  rights  growing  out  of  a  treaty  or  an  express  contract 
between  them.     The  "pact,"  so-called,   was  really  the 


French  Administration,  1 600-1 787      21 

recognition  of  a  mutual  obligation  growing  out  of  an 
established  relationship.  The  expression,  "the  colonial 
pact,"  implied  that  the  mutual  restrictions  and  obliga- 
tions were  such  as  arose  from  the  definition  of  the  terms 
of  the  relationship,  and  grew  out  of  the  balancing  of  the 
respective  interests  of  the  parties — the  Constitution,  laws, 
and  customs  of  the  Imperial  State  on  the  one  side  against 
the  local  circumstances  and  conditions  of  the  depend- 
encies on  the  other. 

The  principle  of  "the  colonial  pact"  was  evolved  by- 
France  after  a  long  and  extensive  experience  in  the  ad- 
ministration of  dependencies.  The  French  Colonial 
Empire  of  the  seventeenth  century  was  as  wonderful  for 
its  day  as  is  the  British  Empire  for  the  present  time. 
Between  1603  and  1664,  privileged  companies  were  or- 
ganized for  the  colonization  of  Canada,  Acadia,  Sumatra, 
Java,  Molucca,  the  East  Indies,  Madagascar,  Guinea,  and 
Africa.  Between  1664  and  17 18,  similar  companies  were 
organized  on  expiration  of  the  former  charters,  for  colo- 
nizing and  exploiting  the  East  and  West  Indies,  Senegal, 
Guinea,  Acadia,  San  Domingo,  the  Hudson's  Bay  region, 
China,  and  Canada.  Many  of  these  ventures  came  to 
nothing,  but,  on  the  other  hand,  some  succeeded.  In 
1750,  the  Colonial  Empire  of  France  included  Canada, 
Acadia,  Louisiana,  several  islands  in  the  West  Indies, 
Guiana,  Senegal,  and  a  number  of  islands  near  Africa 
and  Australia.  The  French  Colonial  Empire  of  1750  is 
said  to  have  included  a  region  four  million  five  hundred 
square  miles  in  extent. 

A  theory  developed  out  of  this  enormous  and  diversi- 
fied experience  by  a  State  having  so  just  and  moderate  a 
conception  of  the  character  and  extent  of  governmental 
power  is  certainly  deserving  of  serious  and  careful  consid- 
eration. When  closely  examined,  it  is  to  be  noticed  that 
by  the  use  of  the  word  "  pact"  to  describe  the  bond  be- 
tween  France  and   its  dependencies,  it  was  necessarily 


2  2    The  Administration  of  Dependencies 

implied  that  the  dependencies  were  legal  and  political 
persons — that  is,  States — distinct  from  the  State  of 
France,  since  a  pact,  like  every  other  form  of  contract, 
necessarily  implies  two  persons,  as  parties  to  the  con- 
tract, each  of  whom  is  capable  of  contracting.  It  was 
implied  in  the  whole  expression,  "the  colonial  pact," 
that  the  terms  of  the  relationship  were  such  that  the 
stronger  party  recognized  itself  as  under  a  moral  obliga- 
tion to  the  weaker  party  to  see  that  the  relationship  was 
on  the  same  terms  as  if  they  had  been  equal  in  strength, 
though  it  was  to  judge  what  such  terms  ought  to  be. 
The  conception  of  the  relationship  between  France  and 
its  dependencies  as  one  arising  out  of  a  "pact  "  was  there- 
fore a  conception  of  the  dependencies  as  States  in  a  fed- 
eral union  with  the  State  of  France. 

According  to  this  theory,  there  existed  an  implied 
contract  between  the  Imperial  State  and  its  depend- 
encies, which  determined  the  relations  between  them, 
and  according  to  which  the  Imperial  State  agreed  to 
render  services  for  the  dependencies  in  the  way  of  physi- 
cal protection  and  political  guidance,  and  they  agreed  to 
pay  for  those  services  by  means  of  restrictions  on  their 
trade  and  commerce  for  the  benefit  of  the  Imperial  State. 
Just  what  services  were  to  be  rendered,  and  just  what 
payment  was  to  be  made  for  the  services,  the  Imperial 
State  determined,  but  in  making  such  determinations  or 
dispositions,  it  consulted  the  wish  of  the  dependencies 
and  regarded  their  interests. 

It  has  often  been  claimed  that  the  theory  of  "  the 
colonial  pact  "  was  invented  as  a  means  of  covering  up 
oppression  of  the  dependencies  by  France.  It  seems, 
however,  that  it  was  rather  the  conception  of  a  wise 
statesmanship,  which  foresaw  that  remote  and  scattered 
dependencies  could  not  in  the  long  run  be  held  by  force, 
and  that  they  must  be  regarded  as  being  to  some  extent 
political  persons,  or  States,  in  a  relationship  with  France 


French  Administration,  1600-1787      23 

resembling  a  federal  union. 

As  the  French  Colonies  developed  to  a  point  where 
their  populations  were  capable  of  expressing  their  will  in 
an  organized  manner,  they  were  given  the  right  to  have 
Local  Councils,  of  the  same  kind  as  those  of  the  Provinces 
of  France  itself,  whose  advice  was  carefully  considered 
by  the  King  and  his  Council  before  any  acts  of  the  King 
became  final. 

The  same  author  from  whom  we  have  quoted  above, 
M.  Emilien  Petit,  in  his  Droit  Public  ou  Gouvernement 
des  Colonies  Frangoises,  published  in  1771,  gives  many 
examples  of  French  colonial  charters  and  commissions  in 
which  the  duty  of  the  colonists  to  observe  the  ordinances 
and  regulations  of  the  King  and  the  judgments  of  the 
courts  in  accordance  with  the  custom  (common  law)  of 
Paris  is  stated,  but  in  which  it  is  recognized  that  the 
local  circumstances  and  conditions  of  the  colonists  are 
entitled  to  be  considered.  He  shows  that  where  colonies 
were  given  the  right  to  have  Local  Councils,  these  Coun- 
cils had  the  right  of  remonstrance  against  ordinances  or 
regulations  proposed  by  the  King,  of  substantially  the 
same  kind  as  the  Local  Councils  or  Parlements  of  the 
Provinces  of  the  Realm,  one  of  the  grounds  of  remon- 
strance permitted  being  "that  the  proposed  law  would 
cause  inconvenience." 

The  great  part  of  the  French  Colonial  Empire  was  lost 
in  the  war  with  England  between  1756  and  1763.  French 
India  became  British  India  and  French  Canada  became 
British  Canada  in  1756  and  1757,  and  the  conquests  were 
secured  to  Great  Britain  by  the  Treaty  of  1763 — Louisiana 
passing  by  cession,  at  the  same  time,  to  Spain.  The 
loss  of  the  Colonial  Empire  was  due  to  the  weakness  of 
France  itself  caused  by  the  denial  to  the  people  of  the 
expression  of  the  popular  will  which  had  been  allowed 
under  the  traditional  Constitution,  and  was  not  in  the 
least  degree  due  to  the  theory  or  practice  in  the  adminis- 


24    The  Administration  of  Dependencies 

tration  of  its  dependencies.  French  colonists  were  loyal 
to  France  and  French  methods  in  India  were  adopted  by 
the  British.  The  underlying  principles  of  "the  colonial 
pact"  were  sound.  Colonies  connected  with  France  by 
"pact"  occupied  a  dignified  position  in  the  political 
world.  As  to  them,  France  was  a  State  to  some  extent 
foreign,  which  was  their  Sovereign,  under  obligation  to 
protect  and  guide  them  by  its  ordinances  and  disposi- 
tions, but  at  the  same  time  under  obligation  not  to  act 
except  as  might  be  necessary  for  these  purposes. 


CHAPTER   II 

ENGLISH  ADMINISTRATION,    1584-I606 

WILLIAM  THE  CONQUEROR,  in  1066,  brought 
with  him  into  England  the  French  theory  of 
governmental  power.     In  his  coronation  oath, 
he  promised  among  other  things: 

To  rule  over  the  whole  people  subject  to  him  justly  and 
with  royal  providence:  to  enact  and  to  preserve  right  law,  and 
strictly  to  forbid  violence  and  unjust  judgments. 

By  this  oath,  he  recognized  that  the  power  which  he 
exercised  was  conditioned  and  limited,  and  that  it  was 
exercised  under  a  supreme  law  which  it  was  his  duty  to 
adjudicate  and  execute. 

In  the  course  of  a  century  and  a  half,  Anglo-Saxon 
influence  had  predominated,  and  King  John  claimed 
that  the  power  which  he  exercised  was  unconditional 
and  unlimited,  and  that  there  was  no  law  except  his  will. 
Magna  Charta,  granted  by  him  in  121 5,  purported  to  be 
a  gift  of  privileges  from  him  to  the  people  of  England. 
The  enumeration  of  the  privileges  granted  was  preceded 
by  the  following  words  of  gift  and  conveyance  : 

We  have  granted  moreover  to  all  free  men  of  our  Kingdom, 
for  us  and  our  heirs  forever,  all  the  liberties  written  below,  to 
be  had  and  holden  by  themselves  and  their  heirs  from  us  and 
our  heirs. 

There  was  contained  in  this  a  repudiation  of  the  theory 
that   the   governmental   power,    which   the    King    then 

25 


26    The  Administration  of  Dependencies 

exercised,  was  a  power  of  ordinance  or  disposition.  It 
was  regarded  as  a  power  of  commanding  according  to  mere 
will.  The  people  of  England  were  regarded  as  subjects 
of  the  Government  of  England,  except  in  so  far  as  it  had 
"  granted  liberties  "  to  them. 

This  claim  on  the  part  of  the  King  forced  the  people 
of  England  to  combine  against  him  for  the  purpose  of 
extorting  concessions  from  him.  By  1249,  during  the 
reign  of  Henry  III.,  they  had  succeeded  in  having  in- 
serted in  the  enacting  clause  of  all  laws  the  statement 
that  they  were  enacted  "by  the  authority  "  of  the  Lords 
and  Commons,  as  well  as  by  their  "consent,"  thus  laying 
the  foundation  for  the  subsequent  claim  made  by  the 
Lords  and  Commons,  and  afterwards  by  the  House  of 
Commons,  of  absolute  and  unconditional  power. 

At  the  same  time,  the  practice  of  the  English  monarchy 
in  exercising  governmental  power  continued  to  follow 
•along  the  lines  of  the  French  monarchy.  Though  the 
King  claimed  unconditional  and  unlimited  power,  he  acted, 
as  did  the  King  of  France,  by  the  advice  of  a  Council  com- 
posed of  men  expert  in  statecraft, called  the  Privy  Council, 
who  were  in  continuous  attendance  upon  him,  who  enjoyed 
his  closest  confidence,  and  with  whom  he  advised  con- 
cerning every  act  of  government.  Acts  of  State  done  by 
the  King  by  the  advice  of  his  Privy  Council  were  called 
acts  of  the  King  in  Council.  The  Privy  Council  of  the 
King  thus  became  opposed  to  the  Great  Council  of 
the  Kingdom,  consisting  of  the  House  of  Lords  and  the 
House  of  Commons,  but  the  real  issue  was  not  changed 
nor  greatly  obscured  by  reason  of  the  existence  of  the 
Privy  Council  and  the  House  of  Lords,  and  there  was  a 
continual  struggle  between  the  King  and  the  House  of 
Commons,  each  claiming  to  be  the  rightful  Sovereign  of 
England. 

Queen  Elizabeth's  policy  was  to  recognize  the  House 
of  Commons  as  an  existing  and  necessary  institution,  to 


English  Administration,  1 584-1 606     27 

endeavor  to  ascertain  the  part  which  it  ought  to  play  in 
the  Government  of  England  as  the  representative  of  the 
people,  and  to  confine  it  to  the  sphere  of  action  to  which 
she  thought  it  properly  belonged. 

Her  idea  seems  to  have  been  that  the  Parliament  (in 
which,  though  legally  composed  of  King,  Lords,  and 
Commons,  the  House  of  Commons  was  the  controlling 
factor)  ought  to  have  only  the  power  to  negative  the  acts 
of  the  King  in  certain  cases.  When  the  Speaker  of  the 
House  demanded,  as  usual,  liberty  of  speech  for  the 
Commons,  she  replied  that  liberty  of  speech  they  should 
have,  but  that  that  liberty  consisted  in  the  privilege  of 
saying  yes  or  no.  She  admitted  that  the  Parliament 
had  the  supreme  power  with  respect  to  changing  the 
law,  but  claimed  that  it  could  not  initiate  legislation  and 
could  only  negative  legislation  proposed  by  her.  She 
also  admitted  that  the  House  of  Commons  had  full  con- 
trol over  the  supplies. 

The  Parliament  of  Elizabeth's  time  was  therefore  es- 
sentially a  popular  assembly  with  strictly  limited  powers. 
The  Queen  exercised  certain  powers  to  the  exclusion  of 
Parliament,  both  because  it  was  recognized  that  these 
powers  could  be  better  exercised  by  an  expert  body  than 
by  a  representative  body  elected  by  the  people,  and  be- 
cause Elizabeth,  by  her  remarkable  personality  and 
ability,  had  succeeded  in  establishing  a  modus  vivcndi 
between  herself  and  the  House  of  Commons,  by  which, 
in  consideration  that  she  admitted  that  they  had  a  power 
for  certain  specific  purposes  to  supervise,  and  negative 
her  acts,  they  agreed  for  all  other  purposes  to  leave  the 
whole  government  in  her  hands. 

Perhaps  no  English  monarch  brought  out  more  clearly 
than  did  Queen  Elizabeth  the  distinction  between  the 
King,  as  the  expert  part  of  the  Government — the  Crown 
— and  the  Parliament,  as  the  popular  part.  Under  this 
conception,  the  King,  in   his  official  capacity,  was  the 


28    The  Administration  of  Dependencies 

depositary  of  all  governmental  power,  except  that  which 
had  been  appropriated  by  Parliament  or  surrendered  by 
Charter.  Though  Elizabeth  recognized  that  Parliament 
had  appropriated  to  itself  the  power  of  changing  the  laws 
and  of  raising  money,  and  that  under  Magna  Charta  the 
King  was  bound  by  the  judgments  of  his  Judges  given  in 
causes  in  which  the  private  rights  of  individuals  were  in- 
volved, she,  like  all  her  predecessors,  considered  that  all 
powers  which  Parliament  had  not  expressly  claimed  and 
insisted  upon  were  vested  in  her,  as  the  Crown  or  Head 
of  the  English  State.  As  Parliament  had  never  claimed 
the  right  of  disposition  of  the  public  lands  of  the  State, 
she  regarded  herself  as  holding  the  title  to  all  lands  dis- 
covered, ceded,  or  conquered,  as  trustee  for  the  State, 
with  full  powers  in  the  matter  of  disposing  of  them. 

England  of  the  days  of  Elizabeth  was  not  without  its 
experience  in  managing  an  Empire.  Jersey  and  Guernsey 
had  been  dependencies  of  England  at  least  since  the  reign 
of  King  John  (121 5),  and  had  been  treated  as  States 
having  their  own  internal  life  over  which  England  exer- 
cised such  power  as  was  thought  necessary  through  the 
King,  who  was  represented  in  the  Islands  by  a  Governor 
appointed  by  him.  It  had  exercised  power  at  various 
times  over  many  of  the  French  and  German  States  and 
Provinces  as  the  result  of  conquest.  The  power  thus 
exercised  resembled  rather  a  military  occupation  and 
had  not  been  treated  as  permanent.  Ireland  had  been  a 
dependency  since  1495.  During  the  period  from  1495  to 
1584  the  affairs  of  Ireland  had  been  administered  by  the 
King  in  Council,  but  Parliament  had  not  invariably  held 
its  hand.  While  it  does  not  appear  to  have  ever  at- 
tempted to  enact  specific  legislation  applicable  only  in 
Ireland,  it  had  in  some  cases  made  some  laws  effective 
both  in  England  and  Ireland. 

When  the  question  arose  of  colonizing  America,  Queen 
Elizabeth  did  not  hesitate  to  take  the  position  that  this 


English  Administration,  1 584-1 606     29 

was  a  subject  within  her  power  to  regulate  by  royal 
charter.  It  was  recognized  as  being  the  function  of  the 
King  to  grant  charters  of  incorporation  to  inhabitants 
of  the  Realm,  to  grant  by  charter  the  lands  belonging  to 
the  State,  and  to  wield  the  external  power  of  the  State 
in  pursuance  of  treaty  or  for  redress  of  wrong  done  by 
foreign  States.  In  the  Charter  which  Elizabeth  granted 
to  Sir  Walter  Raleigh  for  Carolina  in  1584,  she  recognized 
the  supremacy  of  the  statutes  of  the  Realm,  but  she  re- 
garded herself  as  having  the  exclusive  power  over  the 
whole  subject  of  the  disposition  of  the  lands  and  popula- 
tions in  America  which  might  by  discovery  or  conquest 
be  brought  within  the  power  of  England.  The  Charter 
gave  Raleigh  the  title  to  the  lands  he  should  discover 
and  occupy  and  the  power  of  governing  them.  The  pro- 
visions having  reference  to  the  political  relationship 
between  England  and  the  countries  so  discovered  and 
occupied  were  as  follows: 

And  for  uniting  in  more  perfect  league  and  amity  such 
countries,  lands  and  territories,  so  to  be  possessed  and  in- 
habited as  aforesaid,  with  our  Realms  of  England  and  Ireland 
.  .  .  we  do  by  these  presents  grant  and  declare  that  all 
such  countries,  so  hereafter  to  be  possessed  and  inhabited  as 
aforesaid,  shall  henceforth  be  of  the  allegiance  of  us,  our 
heirs  and  successors. 

We,  for  us,  our  heirs  and  successors,  are  likewise  pleased 
and  contented,  and  by  these  presents  do  give  and  grant  to  the 
said  Walter  Raleigh,  his  heirs  and  assigns  forever,  that  he  and 
they,  and  every  of  them,  shall  and  may  from  time  to  time  for- 
ever after,  within  the  said  remote  lands,  and  countries  in  the 
way  by  the  seas  thither  and  from  thence,  have  full  and  mere 
power  and  authority  to  correct,  punish,  pardon,  govern  and 
rule  by  their  and  every  of  their  good  discretions  and  poHcies, 
as  well  in  causes  capital  or  criminal  as  civil,  both  marine  and 
other,  all  such  our  subjects  as  shall  ...  at  any  time  in- 
habit any  such    lands,   countries  or  territories  as   aforesaid 


30    The  Administration  of  Dependencies 

according  to  such  statutes,  laws  and  ordinances,  as 
shall  be  by  him,  the  said  Walter  Raleigh,  his  heirs  and  assigns, 
and  every  or  any  of  them,  devised  or  established  for  the  better 
government  of  the  said  people  as  aforesaid,  ...  so  always 
as  the  said  statutes,  laws  and  ordinances  may  be,  as  near  as 
conveniently  may  be,  agreeable  to  the  form  of  the  laws, 
statutes,  government  or  policy  of  England,  and  also  so  as  they 
be  not  against  the  true  Christian  faith,  now  professed  in  the 
Church  of  England,  nor  in  anywise  withdraw  any  of  the  sub- 
jects or  people  of  those  lands  or  places  from  their  allegiance 
to  us,  our  heirs  and  successors,  as  their  immediate  Sovereign 
under  God. 

This  Charter  made  Carolina  a  Province  of  England, 
under  Raleigh  as  Lord  Proprietor.  The  method  of 
colonization  thus  employed  was  evidently  an  application 
of  the  method  of  disposition  of  the  public  lands  which 
had  been  employed  in  England  for  centuries,  according 
to  which  the  King  granted  to  those  who  had  deserved 
well  of  the  State  such  portions  of  the  public  lands  as  he 
thought  proper,  with  certain  rights  of  lordship,  and  the 
inhabitants  of  the  land  became  tenants  of  the  Lord  Pro- 
prietor, who  was  himself  a  tenant  of  the  King — that  is, 
of  the  State.  The  very  full  powers  of  government 
granted  to  Raleigh  over  the  inhabitants  of  Carolina  were 
evidently  an  extension  of  the  powers  (almost  entirely  ju- 
dicial or  military)  of  Lords  Proprietors  in  England  over 
their  tenants,  and  were  evidently  given,  from  the  neces- 
sity of  the  case,  on  account  of  the  remoteness  of  the  lands. 

According  to  the  theory  of  this  Charter,  the  regions  in 
America  to  be  discovered  and  occupied  were  external  to 
the  State  of  England — "remote  lands  and  countries" — 
related  to  that  State  by  a  contractual  and  constitutional 
bond — a  "union."  The  power  of  both  King  and  Parlia- 
ment over  the  countries  was  taken  for  granted.  The 
provision  that  Raleigh  and  his  successors  should  make 
their  statutes,   laws,   and   ordinances   "as  near  as  con- 


English  Administration,  1584- 1606      31 

veniently  may  be,  agreeable  to  the  form  of  the  laws, 
statutes,  government  or  policy  of  England  "  impHed 
that  the  remote  lands  and  countries  were  political  enti- 
ties distinct  from  the  State  of  England,  whose  govern- 
ment was  to  be  made  as  nearly  as  practicable  like  that 
of  England.  It  was  implied  that  England  would  not 
interfere  with  the  inner  life  of  these  countries  unless 
Raleigh  and  his  successors  failed  to  preserve  a  sufficient 
degree  of  uniformity.  The  power  of  England  over  the 
external  life  of  these  countries  was  regarded  as  based  on 
the  allegiance  (that  is,  the  contract)  between  the  King 
and  the  individual  inhabitants  of  the  countries. 

The  question  of  the  character  and  extent  of  the  power 
which  England  might  justly  exercise  over  its  various  kinds 
of  dependencies  was  much  discussed  between  1603  and 
1607,  when  King  James,  as  King  of  both  England  and 
Scotland,  was  trying  to  unite  the  two  Kingdoms.  The 
hostility  among  the  common  people  of  England  to  the 
Scotch  was  so  great  that  the  House  of  Commons  would 
not  agree  to  the  Scotch  having  any  more  rights  in  Eng- 
land than  the  existing  common  law  gave  them.  It  was 
agreed  that  the  common  law  gave  no  rights  in  England 
to  any  one  born  in  Scotland  before  King  James  came 
to  the  throne  of  England — that  they  were  aliens  until 
naturalized  by  Act  of  Parliament.  The  question,  there- 
fore, concerned  only  those  born  after  King  James  came 
to  the  throne,  who  were  hence  called  the  postnati.  A 
great  hearing  was  had  in  Parliament  in  1603,  the  eleven 
highest  judges  of  England  sitting  as  a  tribunal,  and 
members  of  the  House  of  Commons  arguing  the  case  be- 
fore them,  some  presenting  the  case  from  the  standpoint 
of  the  law  of  nature  and  of  nations,  some  from  the  stand- 
point of  historical  precedent,  some  from  the  standpoint 
of  civil  law,  and  some  from  that  of  the  common  law. 

While  the  case  was,  of  course,  one  of  mere  personal 
union  through  a  common  Chief  Executive,  as  we  should 


32    The  Administration  of  Dependencies 

say  now,  that  situation  was  not  so  apparent  in  those 
days,  when  the  principles  of  the  general  public  law  were 
yet  in  process  of  formation ;  and  in  the  arguments  and 
opinions,  the  powers  of  the  English  Government  over  the 
dependencies  were  fully  discussed,  and  it  was  agreed,  both 
by  the  judges  and  the  members  of  the  House  who  acted 
as  counsel,  that  the  power  of  Parliament  over  the  de- 
pendencies was  the  same  as  its  power  in  England.  In 
1607,  a  test  case  was  made  up,  known  as  Calvin's  Case, 
in  which  the  same  issues  were  raised.  It  was  heard  be- 
fore all  the  high  judges  of  England,  under  a  practice 
which  permitted  all  to  sit  in  cases  deemed  of  exceptional 
public  importance,  and  the  same  ground  covered  in 
the  argument  and  opinions,  and  the  same  conclusions 
reached. 

While  the  Case  of  the  Postnati  and  Calvin's  Case  did 
not,  as  has  been  seen,  necessarily  involve  the  question 
whether  Parliament  had  power  over  the  dependencies, 
yet,  on  account  of  the  solemnity  of  the  hearings,  and  the 
unanimity  between  court  and  counsel  on  that  point,  the 
matter  was  then  finally  settled  as  a  part  of  the  Constitu- 
tion of  England.  Dependencies  were  defined  to  be 
"  parcel  of  the  Realm  in  tenure"  which,  after  being 
merged  in  the  Realm  by  union  and  incorporation,  be- 
came "  parcel  of  England  in  possession  "  or  "  parcel  of 
the  body  of  the  Realm."  "  Parliament,"  it  was  said, 
might  "  make  a  statute  to  bind  in  [a  dependency],  if  [the 
dependency]  were  specially  named,  but  without  special 
naming,  it  does  not  bind."  In  this  statement,  the  Court 
recognized  that  a  dependency,  from  its  nature,  demanded 
a  special  treatment  by  the  State  in  the  interests  of  the 
State  itself;  and  a  corollary  from  this  was,  of  course, 
that  Parliament  might  make  special  laws  for  the  govern- 
ment of  particular  dependencies. 

This  statement  was  made  with  especial  reference  to 
Ireland,  and  with  full  consideration  of  the  facts,  which 


English  Administration,  1 584-1 606     33 

were  mentioned  by  the  Court,  that  Ireland  did  not  send 
representatives  to  the  English  Parliament,  and  that  it  had 
its  own  Lords  and  Commons  which  constituted  a  Parlia- 
ment with  the  King  of  England  or  his  Deputy,  "  whereat 
they  have  made  divers  particular  laws  concerning  that 
Dominion."  The  real  point  of  the  decision,  though  it  is 
not  very  clearly  expressed  and  can  only  be  made  out  by 
inference,  is  that  Scotland  was  either  a  petty  kingdom 
subordinate  to  England,  and  subject  to  the  will  of  Parlia- 
ment, or  was  merely  a  foreign  friendly  State,  and  that  no 
community  external  to  England  could  ever  be  constitu- 
tionally related  to  England  through  the  King  except 
as  a  dependency, — that  equal  or  even  unequal  union  with 
another  state  could  be  accomplished  only  by  express  and 
unmistakable  Act  of  Parliament. 

The  power  of  Parliament  over  all  the  petty  kingdoms 
and  dominions  belonging  to  England  having  been  thus 
declared,  by  dictum  of  the  highest  judges  of  England, 
the  power  of  the  King  was,  by  their  dictum,  declared  to 
be  as  follows : 

In  the  case  of  any  Christian  country  under  the  domin- 
ion of  England,  to  which  the  laws  of  England  had  been 
given  by  the  King  or  by  Parliament,  the  King  could  not 
"  alter  the  laws  "  any  more  than  he  could  "  alter  "  the 
laws  of  England,  in  England.  This  merely  meant  that 
the  King  could  not  legislate  contrary  to  the  laws  of  Eng- 
land so  given,  but  that  he  could  legislate  in  any  way  not 
inconsistent  with  them. 

In  the  case  of  countries  (necessarily  Christian)  com- 
ing to  the  King  by  inheritance,  the  King  could  not 
**  change  "  the  laws  of  the  country.  "  Change,"  in  this 
connection,  meant  the  same  as  "  alter  " — that  he  could 
not  legislate  contrary  to  them,  but  that  he  could  legislate 
in  any  way  not  inconsistent  with  them. 

In  the  case  of  a  conquered  Christian  country,  the  laws 
of    the    conquered    country   remained    until   the    King 


34    The  Administration  of  Dependencies 

changed  them,  which  he  might  do  at  his  pleasure.  It 
was  evidently  considered  unnecessary  by  the  Court  to 
say  that  the  King  in  changing  them  would  make  them 
conform,  as  nearly  as  possible,  to  the  laws  of  England. 

In  the  case  of  a  conquered  infidel  country,  the  laws  of 
the  conquered  country  were  abrogated  ipso  facto  by  the 
conquest,  "  for  that  they  be  not  only  against  Christian- 
ity, but  against  the  law  of  God  and  of  nature,  contained 
in  the  Decalogue,"  and  the  King  "  by  himself  and  such 
judges  as  he  shall  appoint,  shall  judge  them  and  their 
causes  according  to  natural  equity  .  .  .  until  certain 
laws  be  established  amongst  them,"  that  is,  until  Parlia- 
ment made  a  local  code  or  until  the  conquered  popula- 
tion organized  themselves  into  a  dependent  State  and 
established  its  own  local  laws.  The  use  of  the  word 
"  judges  "  to  describe  both  the  administrative  and  judi- 
cial officers  in  a  dependency  of  inferior  race  and  civiliza- 
tion is  noticeable.  It  expressed  the  expert  and  judicial 
character  of  the  power  exercised  by  the  King  in  the 
dependencies,  and  emphasized  the  judicial  character  even 
where  the  power  was  exercised  for  purely  administrative 
purposes. 

As  the  American  Colonies  were  all  dominions  of  Eng- 
land to  which  the  laws  of  England  had  been  given  by  their 
charters,  the  principle  that  the  King  could  not  legislate 
inconsistently  with  the  laws  of  England  so  given  to 
them,  or  afterwards  given  to  them  by  Parliament  by  an 
Act  in  which  they  were  specially  named,  was  the  only 
one  of  the  principles  announced  in  Calvin's  Case  which 
applied  to  them. 

The  Parliamentary  hearing,  called  the  Case  of  the 
Postnati,  occurred  just  three  years  before  the  first  Ameri- 
can colonial  charter  was  granted.  Sir  Francis  Bacon  was 
the  leader  of  the  counsel  appointed  by  the  House  of 
Commons  to  argue  the  case  before  the  Judges,  and  in- 
troduced  the   various   counsel — among   whom   was   Sir 


English  Administration,  1584- 1606     35 

Edwin  Sandys — who  took  the  different  parts  in  the  argu- 
ment. It  was  doubtless  the  careful  consideration  then 
given  to  the  whole  question  of  the  relation  of  England 
to  all  the  external  communities  related  to  it,  which  led 
Bacon  to  take  such  an  interest  as  he  did  in  the  schemes 
for  colonizing  America,  and  which  enabled  Sandys  to 
do  his  magnificent  work  as  Treasurer  of  the  Virginia 
Company. 


CHAPTER   III 

THE  AMERICAN   CHARTER   OF    1606 

THE  American  Charter  of  1606,  or  the  Virginia  Char- 
ter, so-called,  was  a  regulative  act  for  two  purposes ; 
first,  to  grant  to  certain  persons,  who  were  to  settle 
and  reside  in  America  and  form  there  two  political  com- 
munities dependent  upon  Great  Britain, — one  to  be  called 
"  The  First  Colony  of  Virginia"  and  the  other  "  The 
Second  Colony  of  Virginia  " — the  title  to  the  land  ad- 
jacent to  their  first  settlements  for  a  space  one  hundred 
miles  square ;  and,  second,  to  establish  a  Central  Council  in 
England  for  the  superintendence  of  the  affairs  of  all  the 
American  dependencies,  and  a  Local  Council  in  each 
Colony  to  advise  with  the  Governor  of  the  Colony. 

At  the  time  this  Charter  was  granted,  everything  was 
most  favorable  in  England  for  the  adoption  of  a  just  plan 
of  colonial  administration.  King  James  had  come  to 
England  from  Scotland,  and  was  trying  to  consolidate 
the  two  Kingdoms.  English  jurisprudence  and  politics 
were  being  studied  by  some  of  the  most  able  and  public- 
spirited  men  that  England  has  ever  produced,  and  the 
King  was,  at  this  time,  acting  on  their  advice.  The 
Charter  is  said  to  have  been  drawn  by  Lord  Chief  Justice 
Popham,  who  was  one  of  the  most  distinguished  of  the 
Chief  Justices  of  the  King's  Bench.  It  doubtless  was  in 
part  the  product  of  the  mind  of  Sir  Francis  Bacon. 

Mr.  Hugh  Edward  Egerton,  in  his  History  of  the 
Colonial  Policy  of  Great  Britain,  published  in  1897,  says 
that  the  Central  Council  established  by  this  Charter  was 
■"  a  new  Privy  Council  for  Colonial  Purposes."     While 

36 


The  American  Charter  of  1606  37 

this  statement  is  correct  so  far  as  it  goes,  it  does  not 
fully  state  the  character  of  this  Council.  The  Privy 
Council  was  a  purely  consultative  body — that  is,  it  had, 
apart  from  the  King,  no  powers  of  administration. 
Though  there  was  nothing,  and  of  course  could  have 
been  nothing,  in  the  Charter  to  prevent  the  King  from 
treating  the  Central  Council  established  by  it  as  a  merely 
consultative  body  and  personally  managing  the  affairs  of 
the  Colonies,  yet,  if  he  did  not  choose  to  do  so,  the 
Council  could  administer  the  affairs  of  the  Colonies  with- 
out his  concurrence, — which  the  Privy  Council,  as  such, 
or  a  committee  of  it,  could  not  have  done.  It  was  there- 
fore a  new  Privy  Council  for  Colonial  Purposes  and  more, 
— it  was  an  Imperial  Council  and  an  Imperial  Secretary 
of  State.  It  was  directly  subordinate  to  the  King,  and 
had  actual  administrative  powers  subject  to  the  King's 
visitorial  and  superintending  power. 

This  Imperial  Administrative  Council,  called  "Our 
Council  for  Virginia,"  in  contradistinction  to  the  Council 
resident  in  each  Colony  for  the  purposes  of  local  admin- 
istration, which  was  called  "  the  Council  of  the  Colony," 
was  thus  described  in  the  Charter : 

There  shall  be  a  Council,  established  here  in  England, 
which  shall  consist  of  thirteen  persons,  to  be  for  that  purpose 
appointed  by  us,  our  heirs  and  successors,  which  shall  be 
called  our  Council  for  Virginia;  and  shall,  from  time  to  time, 
have  the  superior  managing  and  direction,  only  of  and  for  all 
matters  that  shall  or  may  concern  the  government,  as  well  of 
the  several  Colonies  as  of  and  for  any  other  part  or  place, 
within  the  aforesaid  precincts  of  four  and  thirty  and  five  and 
forty  degrees  above  mentioned. 

The  Charter,  by  creating  this  Imperial  Administrative 
Council,  contained  a  recognition  of  the  distinction  be- 
tween the  functions  of  the  King  acting  within  the  State, 
and  his  functions  when  acting  for  England  as  the  Imperial 


38    The  Administration  of  Dependencies 

State  constituting  the  Head  of  the  British  Empire.  The 
underlying  thought  was  that  the  existence  of  colonies  of 
England  necessarily  implied  that  England  was  related  to 
them  as  their  Imperial  State ;  that  the  functions  of  the 
State  acting  upon  communities  or  corporations  outside 
itself  were  distinct  in  character  from  its  functions  when 
acting  upon  communities  or  corporations  within  itself ;  and 
that  the  body  of  persons  appointed  to  advise  and  act  for 
the  King  in  the  performance  of  his  duties  as  a  part  of  the 
government  of  the  State,  when  the  State  was  fulfilling  its 
functions  toward  communities  and  corporations  within 
itself,  ought  to  be  distinct  from  the  body  appointed  to 
advise  him  when  the  State  was  fulfilling  its  functions 
toward  communities  and  corporations  outside  itself. 

It  is  noticeable  that  this  Imperial  Administrative  Coun- 
cil was  not  limited  to  the  superintendence  of  the  affairs 
of  the  two  Colonies  mentioned  in  the  Charter,  but  was  to 
have  the  superintendence  of  "  any  other  part  or  place 
within  the  aforesaid  precincts  of  four  and  thirty  and  five 
and  forty  degrees  above  mentioned  " — that  is  to  say,  be- 
tween the  northern  boundary  of  South  Carolina  as  at 
present  established,  and  the  present  city  of  Eastport, 
Maine,  and  extending  westward  to  the  Pacific  Ocean. 
The  power  was  large  enough  to  place  within  the  charge 
of  this  Council  all  the  Indian  tribes  which  should  be  con- 
quered or  should  place  themselves  under  the  protect- 
ion of  England,  and  all  settlements  of  foreigners  which 
should  be  conquered  or  should  submit  to  dependence 
on  that  State.  Instead  of  being  called  "  Our  Council 
for  Virginia,"  it  would  more  properly  have  been  called 
"The  Imperial  Administrative  Council  in  Charge  of  the 
Relations  between  England  and  the  Dependencies  in 
America." 

By  the  King's  Orders  and  Instructions  of  November 
20,  1606,  the  powers  of  the  Council  in  England  (called 
"the  King's  Council  for  Virginia")  were  thus  defined: 


The  American  Charter  of  1606         39 

They  shall  have  full  power  and  authority,  at  the  pleasure 
and  in  the  name  of  his  Majesty,  his  heirs  or  successors,  to  give 
directions  to  the  Councils  resident  in  America,  for  the  good 
government  of  the  people  there,  and  for  the  proper  ordering 
and  disposing  all  causes  within  the  same,  in  substance  as  near 
to  the  common  law  of  England,  and  the  equity  thereof,  as 
may  be. 

In  these  Instructions  the  word  "  dispose  "  is  used  with 
the  word  "  order  "  as  describing  the  power  which  the 
Council  were  to  exercise  "  at  the  pleasure  and  in  the 
name  of  "  the  King, — that  is  to  say,  to  describe  the  power 
of  the  King. 

It  will  be  advisable,  in  view  of  the  important  part 
which  the  word  "  dispose  "  plays  in  the  clause  of  the 
Constitution  of  the  United  States  which  relates  to  the 
administration  of  dependencies,  and  in  the  Acts  of  Con- 
gress preceding  the  adoption  of  the  Constitution,  to 
ascertain  at  this  point  the  exact  meaning  of  that  word. 

The  word  "  dispose  "  was  the  word  commonly  used  in 
the  public  acts  of  the  time  to  express  the  exercise  of  gov- 
ernmental power  which  was  held  under  a  condition  that 
it  should  be  exercised  expertly  and  according  to  just 
principles,  just  as  the  word  disposer  was  the  most  ap- 
propriate in  the  French  language  to  express  the  same 
idea.  Contemporary  examples  of  this  use  are  the 
following : 

For  the  handling,  ordering  and  disposing  of  matters  and 
affairs  of  greater  weight  and  importance,  and  such  as  shall  or 
may  in  any  sort  concern  the  weal  public  and  general  good  of 
the  said  Company  and  Plantation,  as,  namely,  the  manner  of 
government  from  time  to  time  to  be  used,  the  ordering  and 
disposing  of  the  lands  and  possessions,  and  the  settling  or  es- 
tablishing of  a  trade  there,  or  such  like,  there  shall  be  held 
and  kept  every  year  .  .  ,  four  Great  and  General 
Courts.      (Charter  of  the  Virginia  Company  of  1611.) 


40    The  Administration  of  Dependencies 

The  said  Governor  and  Assistants  shall  apply  themselves  to 
take  care  for  the  best  disposing  and  ordering  of  the  general 
business  and  affairs  of,  for  and  concerning  the  said  lands  and 
premises  hereby  mentioned  to  be  granted,  and  the  plantation 
thereof  and  the  government  of  the  people  there.  (Charter 
of  the  Massachusetts  Bay  Company  of  1629;  also  Charter 
of  Rhode  Island  of  1663.) 

The  Commissioners  shall  have  power  and  authority  to  pro- 
vide for,  order  and  dispose  all  things  which  they  shall,  from 
time  to  time,  find  most  advantageous  for  the  said  Planta- 
tion. .  .  .  Always  reserving  to  the  said  Commissioners 
power  and  authority  for  to  dispose  the  general  government  of 
that  Plantation,  as  it  stands  in  relation  to  the  rest  of  the  Plan- 
tations in  America,  as  they  shall  conceive,  from  time  to  time, 
most  conducing  to  the  general  good  of  the  said  Plantation,  the 
honor  of  his  Majesty,  and  the  service  of  the  State.  (Charter 
of  Providence  Plantation  of  1644.) 

The  said  General  Assembly  shall  have  full  power  and  au- 
thority ...  to  elect  and  constitute  such  officers  as  they 
shall  think  fit  ahd  requisite  for  the  ordering,  managing  and 
disposing  of  the  affairs  of  the  said  Governor  and  Company, 
and  their  successors  .  .  .  and  to  establish  laws  for  the 
directing,  ruling  and  disposing  of  all  other  matters  and  things, 
whereby  our  said  people,  inhabitants  there,  may  be  peaceably, 
civilly  and  religiously  governed.  (Charter  of  Connecticut  of 
1662.) 

The  word  "  dispose  "  was  peculiarly  appropriate  to  ex- 
press this  idea,  whether  it  be  considered  from  the  stand- 
point of  its  derivation  or  of  its  usage  in  general  literature. 

The  first  meaning  of  the  word  "dispose"  is  "to 
place  apart,"  and, — as  placing  things  apart  implies  a  pur- 
pose in  so  doing, — to  dispose  objects,  physical  or  mental, 
soon  came  to  mean  to  place  them  apart  for  the  purpose 
of  setting  them  in  some  predetermined  order  or  ar- 
rangement. In  military  science,  it  is  proper  and  usual  to 
speak  of  disposing  troops,  or  disposing  of  troops,  so  as 
to  put  them  in  a  certain  order  or   arrangement.     The 


The  American  Charter  of  1606         41 

same  usage  continues  at  the  present  time  in  the  science 
of  architecture,  where  the  arrangement  of  different  parts 
of  a  structure  with  reference  to  each  other  is  spoken  of 
as  the  "  disposition  "  of  the  different  parts. 

Of  "  disposition  "  the  Century  Dictionary  gives  for  the 
first  meaning  "  a  setting  in  order;  a  disposing,  placing, 
or  arranging;  arrangement  of  parts;  distribution":  as, 
"  the  disposition  of  the  infantry  and  cavalry  of  an  army; 
the  disposition  of  the  trees  in  an  orchard  ;  the  disposition 
of  the  several  parts  of  an  edifice  or  of  figures  in  painting; 
the  disposition  of  tones  in  a  chord  or  of  parts  in  a  score," 
As  a  very  ancient  example  of  this  use,  it  quotes  the  fol- 
lowing from  Sir  T.  Wilson's  Essay  on  Rhetoric  (1553): 

"  Disposicion  is  a  certain  bestowing  of  thinges,  and 
an  apt  declaring  what  is  meete  for  every  part,  as  tyme 
and  place  doe  beste  require." 

Dr.  Johnson,  in  his  great  dictionary,  published  in 
1775,  gives  the  following  illustration  of  this  meaning  of 
"disposition"  from  Dryden  (1680): 

"  Under  this  head  of  invention  is  placed  the  disposition 
of  the  work,  to  put  all  things  in  a  beautiful  order  or  har- 
mony, that   the  whole  may  be  of  a  piece." 

From  this  meaning,  of  placing  in  a  certain  order  or 
arrangement,  the  word  "  dispose  "  soon  came  to  have  the 
meaning  "  to  regulate  or  govern  in  an  orderly  way;  to 
order,  control,  direct,  manage,  command,"  as  the  new 
Oxford  Dictionary  informs  us.  This  dictionary  gives  the 
following  quotations,  as  illustrating  the  meaning:  From 
Trevisa  (1398) :  "  Angels  have  under  theym  the  orders  of 
men,  and  ordeyne  and  dyspose  theym."  From  Savile 
(1581):  "  Otho  disposed  the  affaires  of  the  Empire." 
From  Chapman  (1618):  "  They  were  such  great  fools 
at  that  age  that  they  could  not  themselves  dispose  a 
family."  From  Milton  (1667):  "Be  it  so,  since  hee 
Who  is  now  Sovran  can  dispose  and  bid  what  shall  be 
right."     From  Hale  (1677):  "  A  regent  principle,  which 


42    The  Administration  of  Dependencies 

may  govern  and  dispose  it  as  the  soul  of  man  doth  the 
body." 

One  meaning  of  "  disposition  "  given  by  the  Century 
Dictionary  is,  "  guidance  and  control;  order;  command; 
decree:  as,  the  dispositions  of  the  statute."  It  gives  the 
following  illustrations  of  this  meaning:  "  I  putte  me 
in  thy  proteccioun,  Dyane,  and  in  thi  disposicioun 
(Chaucer,  1390);  "  Who  have  received  the  law  by  the 
disposition  of  angels"  {Acts  vii.  53);  "  Appoint  {i.  e., 
arraign)  not  heavenly  disposition,  father  "  (Milton,  1671). 

Another  meaning  which  the  word  "  dispose  "  had,  ac- 
cording to  the  Oxford  Dictionary,  was  "  to  make  arrange- 
ments ;  to  determine  or  control  the  course  of  affairs  or 
events;  to  ordain,  appoint."  Under  this  meaning  is 
given  the  proverb,  "  Man  proposes  but  God  disposes," 
and  also  a  quotation  from  Hall's  Chronicles  (1548):  "  To 
dispose  for  the  nedes  of  the  foresaid  realme." 

Other  examples  of  the  use  of  the  word  with  this  mean- 
ing are : 

"  There  were  in  these  quarters  of  the  world,  sixteen 
hundred  years  ago,  certain  speculative  men,  whose  au- 
thority disposed  the  whole  religion  of  those  times  " 
(Hooker,  1595);  and  "  Who  hath  disposed  the  whole 
world  ?"  {Job  xxxiv.  13). 

The  Oxford  Dictionary  gives  as  one  meaning  of  "  dis- 
posal," "  the  act  of  disposing  things,  or  parts  of  a  thing, 
according  to  some  method,  good  or  bad,  or  the  state  or 
manner  of  being  so  disposed ;  arrangement ;  order ;  dis- 
tribution." 

In  the  Century  Dictionary  one  meaning  given  of  "  dis- 
posal," is,  "  regulation,  ordering,  or  arrangement,  by 
right  of  power  or  possession;  dispensation."  An  ex- 
ample which  it  gives  of  this  meaning  is  the  sentence, 
"Tax  not  divine  disposal  "(from  Milton,  1671).  The  same 
dictionary  also  gives,  as  another  meaning  of  "  disposal," 
"power  or  right  to  dispose  of  or  control,"  and  gives  as  an 


The  American  Charter  of  1606         43 

example:  "  Are  not  the  blessings  both  of  this  world  and 
the  next  in  His  disposal  ?"  (Bishop  Atterbury,  1720). 

The  word  "  disposer"  was  recognized  in  English  and 
American  literature  up  to  the  beginning  of  the  nineteenth 
century  as  the  one  which  was  peculiarly  appropriate 
to  characterize  the  Deity,  thus  being  treated  as  a  word 
most  appropriate  to  signify  the  widest  and  most  com- 
plete power,  exercised  for  the  ends  of  order  and  justice. 
The  Century  Dictionary  gives  the  following  examples  of 
this  use : 

"  Forget  not  those  virtues  which  the  great  Disposer 
bids  thee  to  entertain"  (Sir  Thomas  Browne,  1646); 
"  Leave  events  to  their  Disposer  "  (Boyle,  171 5). 

Dr.  Johnson,  in  his  dictionary,  as  an  example  of 
this  meaning  of  the  word  "  disposer,"  gives:  "  All  the 
reason  of  mankind  cannot  suggest  any  solid  ground 
of  satisfaction,  but  in  making  that  God  our  friend,  who  is 
the  absolute  Disposer  of  all  things."  Other  examples 
of  this  same  sense  of  the  word  **  disposer  "  applied 
to  human  beings,  given  by  Johnson  s  Dictionary  and  the 
Century  Dictionary ,  are  : 

"  Would  I  had  been  disposer  of  thy  stars.  Thou 
shouldst  have  had  thy  wish  and  died  in  wars  "  (Dryden, 
1665);  "  The  Gods  appoint  him  The  absolute  disposer 
of  the  earth,  That  has  the  sharpest  sword  "  (Fletcher, 
1620). 

Other  examples  of  the  same  meaning  in  the  derivatives 
"  disposure  "  and  "  dispositive  "  are: 

In  His  disposure  is  the  orb  of  earth.  The  throne  of 
kings,  and  all  of  human  birth,"  and:  "  They  quietly  sur- 
rendered  both  it  and  themselves  to  his  disposure" 
(Sandys,  1630);  "Whilst  they  murmur  against  the  pres- 
ent disposure  of  things,  they  do  tacitly  desire  in  them 
a  difformity  from  the  primitive  rule  and  the  idea  of  that 
mind  that  formed  all  things  best  "  (Sir  Thomas  Browne, 
1646);  "Without    His  eye   and   hand,   His   dispositive 


44    The  Administration  of  Dependencies 

wisdom  and  power,  the  whole  frame  would  disband  and 
fall  into  confusion  and  ruin  "  (Bates,  1685). 

Grotius,  in  his  Peace  and  War  (book  i.,  chapter  iii. ,  sec. 
21),  says  of  the  distinction  between  the  words  "  to  dis- 
pose "  and  "  to  command  "  (the  translation  being  that  of 
Rev.  William  Evats,  made  in  1682): 

Isocrates,  commending  that  excellent  conduct  of  the  ancient 
Athenians,  in  the  managing  of  their  social  wars,  saith,  that 
they  took  care  for  all,  without  intrenching  upon  the  liberty  of 
any.  It  is  well  worth  our  observation  that  what  the  Latins 
express  by  the  word  imperare,  to  command,  the  Greeks  more 
modestly  express  by  the  word  raffffsiv^  to  dispose  or  set  in 
order. 

The  expression  "dispose  of  "  was  used  interchangeably 
with  the  verb  "  dispose."  In  this  sense,  as  in  the  former, 
it  was  frequently  coupled  with  the  word  "  order."  An 
example  of  the  use  of  the  expression  *'  dispose  of "  in  this 
sense  is  found  in  the  preamble  of  the  Fundamental  Orders 
of  Connecticut  of  1638,  which  read: 

Forasmuch  as  it  hath  pleased  the  Almighty  God  by  the 
wise  disposition  of  his  divine  Providence  so  to  order  and  dis- 
pose of  things  that  we,  the  inhabitants  and  residents  of  Wind- 
sor, Hartford  and  Wethersfield  are  now  cohabiting  and 
dwelling  in  and  upon  the  River  of  Connecticut  and  the  lands 
thereunto  adjoining;  and  well  knowing,  where  a  people  are 
gathered  together,  the  word  of  God  requires  that  to  maintain 
the  peace  and  union  of  such  a  people  there  should  be  an  or- 
derly and  decent  government  established  according  to  God,  to 
order  and  dispose  of  the  affairs  of  the  people,  etc. 

Also  in  the  Charter  of  Rhode  Island  of  1663 : 

The  said  Governor  and  Company  shall  have  full  power  and 
authority  ...  to  direct,  rule,  order  and  dispose  of  all 
other  matters  and  things,  as  to  them  shall  seem  meet,  whereby 
our  said  people  and  inhabitants  may  be  religiously,  peaceably 
and  civilly  governed. 


The  American  Charter  of  1606         45 

Another  example  of  this  usage  occurs  in  the  Charter  of 
the  Province  of  Massachusetts  Bay  of  1691  : 

We  do  give  and  grant  that  the  said  General  Court  or  As- 
sembly shall  have  full  power  and  authority  ...  to  dis- 
pose of  matters  and  things  whereby  our  subjects,  inhabitants 
of  said  Province,  may  be  peaceably  and  civilly  governed,  pro- 
tected and  defended. 

The  preposition  '*  of,"  in  the  expression  "  dispose  of," 
evidently  has  the  meaning  of  specifying  the  particular 
object  of  the  act  of  disposing.  The  Oxford  Dictionary 
calls  attention  to  the  fact  that  instances  are  found  where 
the  prepositions  "  upon  "  and  "  on  "  and  also  "  with  " 
are  used  with  the  word  "  dispose."  To  "  dispose  upon  " 
something,  or  to  "dispose  on"  something,  would  plainly 
mean,  if  used  to-day,  to  adjudicate  upon  something  for 
the  purpose  of  determining  the  proper  and  orderly  ar- 
rangement in  regard  to  it  and  making  the  arrangement 
so  determined  upon.  To  "  dispose  of"  something  evi- 
dently has  the  same  meaning.  The  Oxford  Dictionary 
gives  as  the  first  meaning  of  the  expression  "  dispose 
of,"  "  to  make  a  disposition  or  arrangement  of;  to  do 
what  one  will  with  ;  to  order,  control,  regulate,  manage  "  ; 
and,  as  an  illustration  of  this  meaning,  quotes  from 
Shakespeare,  Henry  V.,  iii.,  3,  49:  "  Enter  our  gates; 
dispose  of  us  and  ours;  For  we  no  longer  are  defensible." 

The  Century  Dictionary  defines  "  dispose  of  "  as  mean- 
ing "  to  exercise  control  over;  direct  the  disposal  or 
course  of:  as,  *  They  have  full  power  to  dispose  of  their 
possessions.'  "  As  examples  of  this  meaning  it  gives 
the  following: 

"  The  lot  is  cast  into  the  lap;  but  the  whole  disposing 
thereof  is  of  the  Lord  "  {Prov.  xvi.  33);  "  This  brow 
was  fashion 'd  To  wear  a  comely  wreath,  and  your  grave 
judgment  Given  to  dispose  of  monarchies  "   (Fletcher, 


46    The  Administration  of  Dependencies 

1622);  "  A  planet  disposes  of  any  other  which  may  be 
found  in  its  essential  dignities  "  (W.  Lilly,  1670). 

In  the  original  form  of  the  word,  "  dispone  ,"  it  was 
used  both  transitively  and  intransitively,  and  the  word 
"  of,"  when  used  with  it,  plainly  meant  "  upon,  respect- 
ing, concerning."  This  is  evident  from  the  two  quota- 
tions from  Chaucer,  given  by  the  Century  Dictionary  : 
"  Syn  God  seth  every  thing,  out  of  doutance,  And  hem 
disponeth  through  his  ordinaunce  "  and  :  "  Of  my  moble 
{i.  <?.,  belongings)  thou  dispone  Right  as  the  semeth  best 
is  for  to  done." 

The  conception  of  the  King  as  the  "  disposer  "  of  the 
affairs  of  the  dependencies  was  the  conception  of  him  as 
the  Imperial  Judge  and  Ruler,  under  a  condition  to  exer- 
cise his  powers  by  expert  advice  according  to  just  princi- 
ples, and  not  beyond  what  the  necessity,  in  each  case, 
required. 

In  the  Instructions  occurs  a  clause  in  which  the  King 
declares  his  power  in  the  dependencies  to  be  superior  and 
the  power  of  Parliament  to  be  supreme,  which  reads : 

That  as  the  Colonies  shall,  from  time  to  time,  increase  in 
plantation,  the  King,  his  heirs  and  successors,  will  ordain  and 
give  such  order  and  further  instructions,  laws,  constitutions 
and  ordinances  as  by  them  shall  be  thought  fit  and  convenient: 
Provided  always  that  they  be  such  as  may  stand  with  and  be 
consonant  to  the  laws  of  England,  or  the  equity  thereof. 

"  Consonant  to  the  equity  of  the  laws  of  England" 
meant,  of  course,  "  not  repugnant,  but  agreeable,  as 
nearly  as  may  be,  considering  the  local  conditions  and 
circumstances." 

Excellent  as  the  Charter  was  in  the  respect  that  it  as- 
sured the  Colonies  an  intelligent  fulfilment  of  the 
functions  of  the  Imperial  State  toward  them,  it  was  ob- 
jectionable because  it  did  not  admit  any  right  in  the 
Colonies  to  be  treated  as  States  for  any  purposes.     It  did 


The  American  Charter  of  1606        47 

not  say  that  they  had  not  this  right,  but  simply  left  the 
whole  matter  indefinite.  There  was  to  be  a  Council  in 
each  Colony,  but  how  these  Local  Councils  were  to  be 
constituted  or  what  their  duties  were  to  be  was  not 
stated.  This  was  left  to  future  determination  by  the 
King,  presumably  though  not  necessarily  following  the 
advice  of  the  Imperial  Administrative  Council.  These 
Local  Councils  were  thus  described : 

Each  of  the  said  Colonies  shall  have  a  Council,  which  shall 
govern  and  order  all  matters  and  causes  which  shall  arise, 
grow  or  happen,  to  or  within  the  same  several  Colonies,  ac- 
cording to  such  laws,  ordinances  and  instructions  as  shall  be, 
in  that  behalf,  given  and  signed  with  our  hand  or  sign  manual, 
and  pass  under  our  Privy  Seal  of  our  Realm  of  England;  each 
of  which  Councils  shall  consist  of  thirteen  persons,  to  be  or- 
dained, made,  and  removed  from  time  to  time,  according  as 
shall  be  directed  or  comprised  in  the  same  instructions. 

The  Instructions,  though  so  careful  as  to  the  powers 
of  the  Council  in  England,  not  only  denied  all  statehood 
to  the  Colony,  but  required  the  colonists  for  five  years 
to  bring  all  their  products  into  hotchpot,  thus  converting 
the  Colony  into  a  mere  farm  or  factory,  out  of  the  prod- 
uct of  which  the  colonists,  as  farmers  or  workmen,  got 
their  living  merely.  The  Instructions  did  not  specify 
what  was  to  be  done  after  the  expiration  of  the  five  years. 
Not  only  was  statehood  and  private  property  denied,  but 
the  President  and  Council  were  given  powers  without  the 
limitation  provided  in  the  English  Constitution,  even 
jury  trial  being  permitted  only  in  certain  specified 
cases. 

This  un-English  system  of  local  administration  was 
naturally  most  galling  to  the  colonists.  They  refused  to 
allow  the  President  and  Council  to  carry  out  the  Instruc- 
tions, and  a  state  of  anarchy  ensued.  It  was  to  these 
Instructions,  which  were  a  perversion  of  the  Charter,  and 


48    The  Administration  of  Dependencies 

not  to  the  Charter  itself,  that  the  unpopularity  of  it  was 
due. 

This  Imperial  Constitution  for  the  American  depen- 
dencies, as  it  might  be  called,  containing  so  many  ex- 
cellent ideas  and  capable  of  such  good  results  had  it  been 
supplemented  by  Instructions  securing  to  the  colonists  a 
just  share  in  their  own  government,  was  revoked  after 
being  in  existence  only  three  years,  and  a  new  charter 
granted  on  entirely  different  principles. 


CHAPTER    IV 

IMPERIAL  COUNCILS,    1606-25 

THE  year  1606  marked  the  beginning  of  systematic 
colonization  not  only  in  Virginia,  but  in  Ireland. 
After  the  rebellion  in  Ulster  in  1605,  the  whole  Pro- 
vince was  practically  depopulated  and  confiscated  to  the 
Crown.  This  situation  furnished  an  opportunity  for  the 
English  to  gain  a  new  foothold  in  Ireland  by  coloniza- 
tion, and  James,  in  his  eagerness  for  his  own  aggrandize- 
ment, was  not  slow  to  take  advantage  of  it.  One  of  the 
persons  who  was  consulted  concerning  the  proper  meth- 
ods to  be  employed,  or  who  at  least  felt  at  liberty  to 
offer  his  advice,  was  Sir  Francis  Bacon.  That  it  was  ac- 
ceptable is  shown  by  the  fact  that  the  King  appointed 
him  Solicitor-General  the  next  year.  The  advice  so 
given  is  preserved  in  the  form  of  a  tract  entitled  Certain 
Considerations  touching  the  Plantation  in  Ireland,  which, 
though  not  dated,  shows  on  its  face  that  it  was  written 
after  the  Virginia  Charter  of  1606  had  been  granted. 

In  order  to  appreciate  the  purport  of  Bacon's  advice,  it 
is  necessary  to  consider  the  methods  of  administration  of 
the  dependencies  then  prevailing.  Ireland,  the  Channel 
Islands,  and  the  Isle  of  Man,  were  each  administered  by 
the  King  in  Council  through  a  royal  Governor  assisted 
by  a  royal  Council,  with  the  concurrence  of  an  Assembly 
representing  the  people.  The  Governor  of  Ireland  was 
called  the  King's  Deputy  or  Viceroy,  it  being  thus  recog- 
nized as  a  petty  kingdom,  that  is,  a  State  which  had  for- 
merly been  a  Kingdom,  but  which  was  now  a  dependency, 

49 


50     The  Administration  of  Dependencies 

retaining  its  royal  organization  to  some  extent.  Since 
1495,  when  the  law  called  Poynings'  Law  was  enacted, — 
so  called  because  suggested  by  Sir  Edward  Poynings,  the 
King's  Deputy,  upon  his  pacification  of  Ireland, — no 
Parliament  could  be  held  in  Ireland  without  the  King  be- 
ing officially  informed  of  it,  and  no  Acts  could  be  intro- 
duced in  an  Irish  Parliament  without  having  previously 
received  the  approbation  and  license  of  the  King  under  the 
Great  Seal.  The  Irish  Parliament  was  thus  a  merely  delib- 
erative and  registering  body,  like  the  French  parlements. 
Sir  Francis  Bacon,  after  referring  to  the  fact  that  the 
plan  for  the  colonization  of  Ulster,  which  had  already 
been  partly  formed,  provided  for  a  local  Commission  in 
that  Province,  suggested : 

That  your  Majesty  would  make  a  correspondency  between 
the  Commission  there,  and  a  Council  of  Plantation  here; 
wherein  I  warrant  myself  by  the  precedent  of  the  like  Council 
of  Plantation  for  Virginia;  an  enterprise  in  my  opinion  differ- 
ing as  much  from  this  as  Amadis  de  Gaul  differs  from  Caesar's 
Commentaries.  But  when  I  speak  of  a  Council  of  Plantation,  I 
mean  some  persons  chosen  by  way  of  reference,  upon  whom 
the  labor  may  rest  to  prepare  and  report  things  to  the  Coun- 
cil of  State  here  that  concern  that  business.  For  although 
your  Majesty  have  a  grave  and  sufficient  Council  in  Ireland, 
from  whom  and  upon  whom  the  Commissioners  are  to  have 
assistance  and  dependence;  yet  that  supplies  not  the  purpose 
whereof  I  speak.  For  considering  that  upon  the  advertise- 
ments as  well  of  the  Commissioners  as  of  the  Council  of  Ire- 
land itself,  there  will  be  many  occasions  to  crave  directions 
from  your  Majesty  and  your  Privy  Council  here,  which  are 
busied  with  a  world  of  affairs,  it  cannot  but  give  greater  expe- 
dition, and  hence  better  perfection  unto  such  directions  and 
resolutions,  if  the  matters  may  be  considered  of  aforehand  by 
such  as  may  have  a  continual  care  of  the  cause.  And  it  will 
be  likewise  a  comfort  and  satisfaction  to  some  principal  un- 
dertakers, if  they  may  be  admitted  of  that  Council. 


Imperial  Councils,  1606-25  51 

Bacon  evidently  here  suggests  the  institution  of  a  Per- 
manent Commission,  or  "  Council  in  England,"  for  the 
affairs  of  Ireland,  standing  in  the  same  relation  to  the 
King  in  Council  as  did  a  referee  in  chancery  to  the  Chan- 
cellor,— that  is,  having  the  duty  to  ascertain  and  report 
the  facts  in  each  case  of  complaint  or  request  from  the 
colonists  or  any  persons  interested  in  the  colonies,  and 
their  conclusions  on  the  facts,  for  the  information  of  the 
King  and  the  Privy  Council. 

In  this  there  would  have  been  implied  a  criticism  upon 
the  plan  of  American  government  contained  in  the  Vir- 
ginia Charter  of  1606,  had  he  not  differentiated  America 
from  Ireland,  since  the  "  Council  in  England  for  Vir- 
ginia "  was,  as  has  been  said,  in  no  sense  a  mere  referee 
of  the  Privy  Council,  but  was  itself  an  Imperial  Adminis- 
trative Council, — that  is,  a  body  with  greater  powers  than 
the  Privy  Council,  without  the  concurrence  of  the  King, 
could  exercise.  That  he  did  differentiate  the  case  of 
America  and  Ireland  shows  his  remarkable  sagacity. 
Ireland  was  a  dependency  destined  by  nature  for  ulti- 
mate incorporation  into  the  body  of  the  Realm  of  Eng- 
land. America  was  a  dependency  destined  by  nature 
never  to  be  so  incorporated.  The  affairs  of  Ireland, 
though  essentially  affairs  of  the  Empire,  were  so  closely 
connected  with  the  affairs  of  the  Realm,  that  Bacon 
thought  they  should  be  managed  by  the  King  in  Council 
assisted  by  a  referee  body.  The  affairs  of  America  were 
strictly  affairs  of  the  Empire,  and,  as  such,  were,  as  he 
thought,  properly  in  the  hands  of  a  Council  separate 
from  the  Privy  Council,  and  which  could  act  in  the  first 
instance,  subject  to  the  superintendence  of  the  King. 

The  kernel  of  the  whole  matter  lay  in  the  last  sentence : 
"  And  it  will  be  likewise  a  comfort  and  satisfaction  to 
some  principal  undertakers,  if  they  may  be  admitted  of 
that  Council."  In  order  to  appreciate  this  proposition, 
it  is  necessary  to  consider  the  circumstances  under  which 


52     The  Administration  of  Dependencies 

colonization,  at  that  time,  had  to  be  carried  on.  Emi- 
gration was  then  a  new  idea,  and  when  it  was  broached, 
the  dangers  of  the  enterprise  deterred  all  except  those 
persons  of  small  means  who  were  willing  to  undergo  the 
risk  in  order  to  better  their  financial  condition,  or  who 
were  influenced  by  religious  or  missionary  motives.  3uch 
emigration  had  to  be  encouraged  by  pecuniary  assistance. 
King  James  had  not  money  enough  to  pay  for  the  lux- 
uries he  insisted  upon  having.  The  House  of  Commons 
could  not  be  asked  to  grant  taxes  for  colonization  pur- 
poses,— to  be  expended,  necessarily,  under  the  King's 
supervision, — when  it  was  already  objecting  to  his  re- 
quests for  money.  It  was  necessary,  therefore,  to  adopt 
a  plan  which  would  attract  private  contributions.  There 
were  two  classes  of  persons  who  would  be  likely  to  be  in- 
terested in  colonization, — one  made  up  of  those  who  had 
capital  to  invest  for  the  sake  of  profit,  and  the  other  of 
those  who  were  willing  to  contribute  for  the  public  good 
or  for  religious  or  missionary  reasons,  without  regard  to 
return  or  profit.  The  character  of  colonial  administration 
had,  as  it  then  appeared  to  Bacon,  to  be  adjusted  to  the 
existing  circumstances  so  as  to  allow  capitalists  and  re- 
ligious and  missionary  enthusiasts  to  share  in  it  with  the 
public  authorities.  This  required  that  the  enterprise 
should  be  partly  private  and  partly  public,  and  the  form 
which  naturally  and  inevitably  suggested  itself  for  the 
purpose  was  that  of  a  guild  or  privileged  private  com- 
pany, the  members  of  which,  when  it  was  organized  for 
objects  external  to  its  own  membership,  were  called 
"  undertakers." 

Although  privileged  private  corporations  are  little 
known  at  the  present  day,  being  used  almost  entirely  for 
colonizing  operations  in  uncivilized  regions,  they  were 
very  common  at  that  period,  and  their  rights  and  status 
were  well  and  even  commonly  understood.  The  guilds 
practically  controlled  the  city  of  London.     The  accepted 


Imperial  Councils,  1606-25  53 

definition  of  a  guild  is,  "  a  voluntary  association  for  mutual 
protection,  for  common  mercantile  aims,  or  for  religious 
worship."  In  the  mercantile  guilds  of  the  fifteenth, 
sixteenth  and  seventeenth  centuries,  these  three  objects 
were  combined.  The  characteristic  of  a  guild  was  that  it 
might  admit  or  exclude  any  persons  it  saw  fit.  It  was 
this  characteristic  which  distinguished  a  guild  from  a 
municipal  corporation.  A  guild  could  not  exercise  any 
jurisdiction  outside  its  own  membership  except  by  way 
of  protection  of  its  members.  By  grant  from  the  King 
or  the  Parliament,  it  could,  however,  receive  any  gov- 
ernmental privileges  whatever,  but  it  did  not,  by  so  do- 
ing, lose  its  power  to  admit  persons  to  the  freedom  of 
the  company  and  exclude  persons  from  its  freedom. 
The  members  of  the  guild  were  called  "brethren"  or 
"freemen";  its  meetings  were  called  "Courts."  The 
officers  were  originally  elective  by  the  members,  and  were 
called  by  various  names — the  head  officer  being  more 
usually  called  "  the  Master  "  and  his  Council  being  called 
"  Wardens."  The  law-making  body  was  composed  of  the 
Master  and  Wardens  and  representatives  of  the  whole 
membership  called  "Assistants."  The  meetings  at  which 
all  the  guild-associates  were  present,  as,  for  instance,  for 
the  purpose  of  election  of  officers,  were  called  "  the  Gen- 
eral Courts."  The  English  mercantile  and  trading  guilds 
organized  for  colonizing  purposes  were  exactly  like  the 
French  privileged  companies  which  began  to  be  formed 
at  about  the  same  time.  Any  governmental  privileges 
conferred  by  royal  charter  to  exercise  jurisdiction  be- 
yond the  membership  of  the  guild  were,  in  contemplation 
of  law,  held  at  the  will  of  the  King,  and  could  be  re- 
sumed by  him  at  any  time  without  his  showing  special 
cause,  and  the  long  continuance  of  the  guilds  in  the  use  of 
these  privileges  did  not  interfere  with  the  King's  rights. 
It  mattered  not  with  how  great  governmental  privi- 
leges they  were  endowed,  they  were  essentially  private 


54    The  Administration  of  Dependencies 

corporations  and,  in  the  exercise  of  their  governmental 
privileges,  were  under  the  immediate  control  of  the  offi- 
cers of  the  district,  province,  county,  or  municipality  in 
which  they  were  situated.  They  could  exist  without  in- 
corporation, but  could  not  hold  real  estate  till  they  were 
incorporated. 

The  guild,  endowed  by  royal  charter  with  limited  gov- 
ernmental privileges,  was  a  convenient  instrumentality 
for  the  management  of  colonizing  operations  which  re- 
quired the  raising  of  money  by  private  subscription,  even 
when  the  freemen  of  the  guild  elected  its  presiding  officer 
and  board  of  directors,  since,  in  case  of  contumacy  or 
mismanagement,  the  King  could  immediately  resume  all 
the  governmental  powers  which  it  held  in  trust.  When 
the  King  appointed  the  board  of  directors  of  a  guild,  as 
James  I.  did  whenever  he  could  after  his  contests  with 
the  people  began,  his  control  over  it  was,  theoretically, 
complete.  The  great  London  guilds  succeeded  in  keep- 
ing the  election  of  their  governing  boards  in  their  own 
hands,  in  spite  of  all  efforts  to  the  contrary,  for  many 
years  after  the  granting  of  the  Virginia  Charters. 

When  the  Virginia  enterprise  was  reorganized  in  1609, 
the  new  organization  was,  therefore,  given  the  form  of  a 
guild.  That  this  should  have  been  done  appears  the 
more  natural  when  it  is  remembered  that  the  Virginia 
Company  of  1609  and  the  Ulster  colonization  scheme 
of  the  same  year  were  both,  under  the  precept  of  the 
King,  promoted  and  very  largely  contributed  to  by  the 
London  guilds,  and  that  of  the  seven  hundred  and 
twenty-eight  persons  and  corporations  (among  them  Sir 
Francis  Bacon)  named  as  "  adventurers  "  of  the  guild  in- 
corporated by  the  name  of  "  The  Treasurer  and  Company 
of  the  Adventurers  and  Planters  of  the  City  of  London, 
for  the  First  Colony  in  Virginia,"  fifty-six  were  London 
guilds. 

The  Charter  of  1609  followed  the  usual  form  of  guild 


Imperial  Councils,  1606-25  55 

charters.  It  created  a  private  corporation,  located  in 
England,  to  own  land  and  carry  on  farming  and  trading 
operations  in  Virginia.  The  Imperial  Administrative 
Council  and  the  Council  in  Virginia  created  by  the 
Charter  of  1606  were  both  abolished,  as  it  was  quite 
within  the  discretion  of  the  King  to  do,  since  no  private 
corporate  rights  had  been  created  by  that  Charter.  The 
whole  enterprise,  theretofore  public,  became  essentially 
private,  but  with  a  public  aspect. 

It  was,  of  course,  entirely  consistent  with  the  manage- 
ment of  the  colonizing,  trading,  and  missionary  operations 
in  Virginia  being  in  the  hands  of  a  guild,  that  there 
should  be  a  Council  in  England  for  Virginia,  wholly  pub- 
lic in  its  nature  and  distinct  from  the  guild,  though  con- 
taining among  its  members  "  undertakers  "  of  the  guild; 
and  this  is  evidently  what  Sir  Francis  Bacon  meant  when 
he  recommended,  in  reference  to  the  Ulster  Colony,  that 
"some  of  the  principal  undertakers"  should  "be  ad- 
mitted of"  the  Council  in  England  for  Ulster.  The 
Charter  of  1609  went  beyond  this,  and  provided  a  Coun- 
cil in  England  for  Virginia  which  was  wholly  composed 
of  "  undertakers"  in  the  enterprise. 

The  Board  of  Directors  of  the  guild  was  composed  of 
fifty-two  persons  and  was  called  "  Our  Council  for  the 
Company  of  Adventurers  and  Planters  in  Virginia."  It 
was  appointed  by  the  King  and  was  self-perpetuating. 
All  the  members  of  the  Council  were  adventurers  in  the 
Company — that  is,  those  who  held  the  Company's  "  bills 
of  adventure."  It  was  both  a  Board  of  Directors  for  the 
private  Company  and  the  Imperial  Administrative  Coun- 
cil in  Charge  of  the  Affairs  of  Virginia.  Among  the 
members  of  this  Board  were  the  Earl  of  Southampton, 
Sir  Francis  Bacon,  and  Sir  Edwin  Sandys.  The  Charter 
proceeded  upon  the  assumption  that  there  would  be  Gen- 
eral Assemblies  or  General  Courts  of  the  whole  member- 
ship of  the  Company  which  would  control  the  Council  in 


56    The  Administration  of  Dependencies 

its  legislative  action,  but  made  no  special  provision  for 
the  summoning  of  such  General  Courts. 

The  Company  had  power  to  admit  or  expel  members, 
to  refuse  admission  as  freemen  to  any  persons  considered 
undesirable,  and  to  exercise  jurisdiction  over  those  per- 
sons who  were  on  the  land  granted  to  the  guild  and  who 
were  not  freemen  of  the  Company,  as  if  they  were  its 
servants.  The  Charter,  like  those  of  the  guilds  of  the 
Realm,  proceeded  on  the  assumption  that  the  Company 
was  subject  to  all  laws  of  Parliament,  all  orders  and 
regulations  of  the  Crown,  and  all  regulations  of  any 
municipal  organization  which  should  be  instituted  by 
the  King  or  Parliament  for  the  local  government  of  the 
region  in  which  the  Company  was  allowed  to  carry  on 
its  operations.  It  was  given  power  to  govern  the  English 
colonists 

according  to  such  orders,  ordinances,  constitutions,  directions 
and  instructions,  as  by  our  said  Council  shall  be  established; 
and  in  defect  thereof,  in  case  of  necessity,  according  to  the 
good  discretion  of  the  said  Governor  and  officers  respectively; 
.  so  always  as  the  said  statutes,  ordinances  and  pro- 
ceedings, as  near  as  conveniently  may  be,  be  agreeable  to  the 
laws,  statutes,  government  and  policy  of  this  our  Realm  of 
England. 

The  Governor  of  the  Colony  appointed  by  the  Council 
of  the  Company  was  given  the  powers  of  a  Lord-Lieuten- 
ant in  a  county  of  England.  The  Council  was  still  called 
"Our  Council  " — that  is,  the  King's  Council — and  its  acts 
were,  therefore,  theoretically,  the  acts  of  the  King. 

The  system  provided  by  the  Charter  of  1609  proved  an 
utter  failure.  The  Council  appointed  by  the  King  was 
ineffective  and  unsatisfactory  to  all  concerned,  and  after 
a  short  time  it  became  evident  that  another  plan  would 
have  to  be  adopted. 

The  Virginia  Charter  of  161 1  was  granted  partly  in  or- 


Imperial  Councils,  1606-25  57 

der  to  extend  the  jurisdiction  of  the  Colony  so  as  to  in- 
clude the  Bermuda  Islands,  but  principally  because  of 
the  mismanagement  of  its  affairs.  The  London  guilds 
which  were  adventurers  evidently  insisted  that  the  Com- 
pany should  be  given  the  same  powers  of  self-government 
as  they  had,  and  were  successful,  so  that  the  freemen  of 
the  Company  were  given  full  power  of  managing  all  its 
affairs. 

In  the  Charter  of  161 1,  the  words  appropriate  to  guilds 
are  uniformly  used.  Those  who  had  become  adventurers 
in  the  Company  since  the  granting  of  the  Charter  of 
1609  were  declared  to  be  "  brethren  and  free  members 
of  the  Company."  The  business  meetings  of  the  Com- 
pany were  called  "  Courts,"  and  these  courts,  as  in  the 
case  of  guilds,  were  divided  into  Ordinary  Courts  and 
General  Courts.  The  Ordinary  Courts  were  to  be  held 
as  often  as  the  Company  might  think  proper,  and  to  con- 
sist of  the  Treasurer,  any  five  or  more  members  of  the 
Council,  and  any  fifteen  of  the  freemen  of  the  Company. 
The  General  Courts  were  to  consist  of  the  Treasurer  and 
all  the  freemen  of  the  Company  and  were  to  be  held  four 
times  a  year  on  the  next  to  the  last  Wednesday  of  the 
Hilary,  Easter,  Trinity,  and  Michaelmas  terms,  and  to 
be  called  "  The  Great  and  General  Courts  of  the  Council 
and  Company  of  Adventurers  for  Virginia."  The  Ordi- 
nary Courts  were  to  have  a  superior  jurisdiction,  being 
granted  power 

"for  the  handling  and  ordering  and  dispatching  of  all  such 
casual  and  particular  occurrences  and  accidental  matters,  of 
less  consequence  and  weight,  as  shall  from  time  to  time  hap- 
pen, touching  and  concerning  the  said  Plantation." 

The  General  Courts  were  to  have  a  supreme  jurisdic- 
tion, being  granted  power 

for  the  handling  and  disposing  of  matters  and  affairs  of  greater 
weight  and  importance,  and  such  as  shall  or  may,  in  any  sort. 


58    The  Administration  of  Dependencies 

concern  the  weal  public  and  general  good  of  the  said  Com- 
pany and  Plantation,  as  namely,  the  manner  of  government 
from  time  to  time  to  be  used,  the  ordering  and  disposing  of 
the  land  and  possessions,  and  the  settling  and  establishing  of 
a  trade  there,  or  such  like. 

The  Company  assembled  in  "General  Court"  was 
authorized : 

To  ordain  and  make  such  laws  and  ordinances,  for  the  good 
and  welfare  of  the  said  Plantation  as  to  them,  from  time  to 
time,  shall  be  thought  requisite  and  meet:  So  always  as  the 
same  be  not  contrary  to  the  laws  and  statutes  of  this  our 
Realm  of  England. 

In  addition  to  this  full  grant  of  legislative  powers  over 
the  Colony,  the  power  of  appointing  the  Governor  and 
other  officers  to  manage  the  local  affairs  of  the  Colony 
was  taken  out  of  the  hands  of  the  Council  and  vested  in 
the  Company  assembled  in  General  Court;  so  that  the 
whole  Company,  so  far  as  it  was  granted  governmental 
powers,  was  the  deputy  of  the  King,  for  the  time  being, 
to  administer  both  the  English  interest  in  the  Colony  and 
the  Colony  itself,  subject  to  the  right  of  the  King  to  with- 
draw the  commission  at  any  time,  and  substitute  another 
form  of  agency.  Its  "  Courts"  were  "  the  Council  in 
England  for  Virginia,"  the  so-called  "  Council"  of  the 
Company  being  simply  its  Board  of  Directors. 

The  Colony  in  Virginia  languished  under  the  bad  and 
arbitrary  management  of  the  "  Courts"  of  the  Company, 
abusing  their  powers  as  the  de  facto  Council  in  England 
for  Virginia,  until  1619,  when  Sir  Edwin  Sandys,  one 
of  the  great  lawyers  and  patriots  of  England,  was  elected 
Treasurer  {i.  e.y  President)  of  the  Company.  He  was  as- 
sisted by  the  equally  public-spirited  and  capable  Earl  of 
Southampton.  By  the  influence  of  these  two  men  and 
their  friends  in  the  Company,  the  Courts  of  the  Company 
performed  the  functions  of  a  true  Council  in  England  for 


Imperial  Councils,  1606-25  59 

Virginia,  and  a  most  satisfactory  administration  was 
given  to  the  Colony.  The  functions  of  the  Courts,  as  the 
Council  in  England,  were  separated  from  the  functions 
of  the  Local  Government  and  each  confined  to  its  proper 
sphere  of  action.  The  consent  of  the  King  was  after  a 
time  secured  to  the  admission  of  this  principle,  and  on 
August  3,  162 1,  the  General  Court,  by  the  King's  con- 
sent, granted  to  the  freemen  of  the  Colony,  then  called 
burgesses,  the  right  to  participate  by  their  Representa- 
tives in  the  management  of  the  affairs  of  the  Company, 
by  an  ordinance  entitled  "  An  Ordinance  and  Constitu- 
tion of  the  Treasurer,  Council  and  Company  in  England, 
for  a  Council  of  State  and  General  Assembly."  By  this 
Ordinance,  a  Council  of  State  in  Virginia,  appointed  by 
the  Company  in  England,  was  created,  which  was  the 
Privy  Council  of  the  Governor.  The  Governor  in  Council 
was  given  full  governmental  powers  except  that  he  could 
not  act  contrary  to  the  expressed  will  of  either  the  General 
Assembly  of  the  Colony,  the  General  Court  of  the  Com- 
pany, the  King  in  Council,  or  Parliament.  The  General 
Assembly,  which  consisted  of  the  Governor,  the  Coun- 
cil, and  Representatives  from  every  "  town,  hundred  or 
particular  plantation,"  was  the  General  Legislature  of  the 
Colony.  It  was  permitted  to  hold  only  one  session  in 
each  year,  except  on  occasions  of  emergency,  and  was 
given  full  powers  of  legislation  except  that  it  could  not 
act  contrary  to  the  expressed  will  of  either  the  General 
Court  of  the  Company,  the  King  in  Council,  or  Parlia- 
ment. 

This  Ordinance  did  not  purport  to  be  granted  under 
the  terms  of  the  Charter,  but  by  special  authority  from 
the  King — "  by  authority  directed  to  us  from  his  Majesty 
under  the  Great  Seal."  It  was  a  strictly  political  instru- 
ment, having  no  characteristics  whatever  of  a  guild  char- 
ter, and  on  its  face  negating  the  possibility  of  its  ever 
being  claimed  td  be  such,  since  it  included  all  inhabitants 


6o    The  Administration  of  Dependencies 

of  the  Colony,  present  and  future.  It  was  not  only  an 
Ordinance,  but  a  Constitution,  since  it  showed  on  its  face 
that  the  arrangements  which  it  made  were  intended  to 
be  permanent.  It  recognized  the  Courts  of  the  Company 
as  the  Imperial  Administrative  Council  for  Virginia.  The 
legislative  acts  of  the  Company  were  called  "  Orders  of 
Court,"  following  the  practice  when  the  Council  for  Vir- 
ginia existed,  the  acts  of  which  were  called  "  Orders  of 
Council. ' '  The  most  remarkable  part  of  this  Ordinance  is, 
however,  the  arrangement  by  which,  after  the  govern- 
ment of  the  Colony  should  be  settled,  no  law  or  ordi- 
nance enacted  by  a  Court  of  the  Company  was  to  be 
valid  in  Virginia  unless  ratified  by  the  General  Assembly 
of  the  Colony.  As  none  of  the  acts  of  the  General  As- 
sembly were  valid  unless  ratified  by  a  Court  of  the  Com- 
pany, this  would  have  left  matters,  after  the  government 
was  settled,  so  that  the  acts  of  the  Courts  of  the  Company 
— that  is,  the  acts  of  the  Imperial  Council — would  have 
been  only  co-ordinate  in  authority  with  the  acts  of  the 
General  Assembly  of  the  Colony,  consisting  of  Governor, 
Council,  and  Representatives,  and  so  that  all  laws  or  or- 
dinances would  have  had  to  be  agreed  upon  by  the  Gen- 
eral Courts  of  the  Company  in  England  and  the  General 
Assembly  of  the  Colony  in  Virginia.  In  case  of  a  dead- 
lock, the  King  would  undoubtedly  have  been  obliged  to 
settle  the  matter  by  an  Order  in  Council.  The  special  au- 
thority granted  by  the  King  to  the  Company  to  enact 
this  Ordinance,  or  Constitution,  was,  in  effect,  a  complete 
alteration  of  the  plan  of  administration  laid  down  in  the 
Charter  of  1611.  It  was  practically  a  return  to  the  plan 
of  the  Charter  of  1606,  according  to  which  there  was  to 
be  an  Imperial  Administrative  Council  in  England  and  a 
Local  Administrative  Council  in  Virginia.  The  differ- 
ences were  that  the  King,  instead  of  insisting  upon  his 
right  of  appointing  the  Council  in  England,  allowed  the 
whole  Company,   composed   of  persons   pecuniarily  in- 


Imperial  Councils,  1606-25  61 

terested  in  the  Colony,  to  act  as  the  Council,  and  that  he 
renounced  his  claim  of  right  to  exclude  the  people  of  the 
Colony  from  a  just  share  in  their  local  government. 

The  connection  with  England  was  kept  through  the 
fact  that  the  Governor  and  his  Council  were  appointed 
there,  and  that  the  Governor  had  the  veto  power;  and 
particularly  by  the  following  restriction  upon  the  power 
of  the  Local  Government: 

The  General  Assembly  shall  have  free  power  to  treat,  con- 
sult and  conclude,  as  well  of  all  emergent  occasions  concern- 
ing the  public  weal  of  the  said  Colony  and  every  part  thereof, 
as  also  to  make,  ordain  and  enact  such  general  laws  and  or- 
ders for  the  behoof  of  the  said  Colony,  and  the  good  govern- 
ment thereof,  as  shall  from  time  to  time  appear  necessary  or 
requisite;  whereas  in  all  other  things  we  require  the  said  Gen- 
eral Assembly,  as  also  the  said  Council  of  State,  to  imitate 
and  follow  the  policy  of  the  form  of  government,  laws,  cus- 
toms and  manner  of  trial,  and  other  administration  of  justice, 
used  in  the  Realm  of  England,  as  near  as  may  be,  even  as 
ourselves  by  his  Majesty's  Letters  Patent  are  required. 

The  years  that  Sir  Edwin  Sandys  held  or  controlled 
the  Treasurership  of  the  Company — from  1619  to  1624 — 
were  the  most  prosperous  the  Company  and  Colony  had 
ever  had  and  the  most  prosperous  that  the  Colony  had 
for  many  years  afterwards.  Though  Sandys  had,  in  fact, 
converted  the  Courts  of  the  Company  into  an  Imperial  Ad- 
ministrative Council  for  the  Colony,  it  was  most  difficult 
to  hold  such  assemblages  of  persons  interested  in  exploit- 
ing the  Colony  up  to  their  obligations  as  an  Administra- 
tive Council.  They  were  non-experts  and  made  Sandys's 
life  a  burden  in  trying  to  get  him  to  protect  or  further 
their  short-sighted  schemes  of  exploitation.  Stith,  in 
his  History  of  the  Early  Settlemefit  of  Virginia,  written  in 
1747,  says: 


62    The  Administration  of  Dependencies 

Although  Sir  Edwin  Sandys  was  much  wronged  in  the  exe- 
cution of  his  office,  and  even  sought  to  be  deterred  by  threats 
of  blood,  they  could  in  no  way  turn  him  from  a  vigorous  pros- 
ecution and  inquiry  into  the  late  disorders  in  Virginia, 

In  the  performance  of  his  duties,  he  even  had  the 
King's  oflficers  prosecuted  for  seizing  some  tobacco  be- 
longing to  the  Company  under  orders  of  the  King,  and 
was  successful  in  having  the  tobacco  restored.  With 
the  Company  nagging  him  on  the  one  hand,  and  the 
King  opposed  to  him  and  demanding  that  he  should  not 
be  re-elected,  he  retired  in  favor  of  the  Earl  of  South- 
ampton, but  on  account  of  his  close  relations  with  the 
Earl  he  retained  the  actual  control  until  the  end  of  the 
Company.  The  destruction  of  the  settlements  in  the  In- 
dian raid  of  1622,  and  the  forfeiture  of  the  Charters  by 
the  Court  of  King's  Bench  in  1624,  on  application  by 
the  King,  brought  to  an  end  the  experiments  under  the 
Charters  of  1609  and  161 1.  The  forfeiture  of  the  Char- 
ters did  not,  of  course,  revoke  the  Ordinance  of  1621, 
which  had  been  granted  by  special  authority  of  the  King, 
and  it  was  allowed  to  stand  as  the  Constitution  of  the 
Dominion  of  Virginia,  so  that  that  Dominion  was  put  on 
a  substantial  equality  with  the  most  favored  of  the  other 
dependencies  of  English  race,  and  was  given  greater  legis- 
lative liberty  in  the  first  instance  than  Ireland  had. 
Necessarily,  upon  the  revocation  of  the  Charters,  the 
Imperial  administrative  power  reverted  to  the  King  in 
Council. 

In  1620,  James  tried  another  experiment  in  the  organi- 
zation of  a  Council  in  England  for  the  Colonies  distinct 
from  the  Privy  Council,  which  exhausted  all  the  possibili- 
ties. He  had  started,  in  1606,  with  an  Imperial  Adminis- 
trative Council  of  small  size,  appointed  by  himself.  This 
was  not  satisfactory,  because  it  did  not  attract  capital.  In 
1609,  he  created  a  self-perpetuating  Board  of  Directors 


Imperial  Councils,  1606-25  63 

of  a  private  corporation  his  Council  for  this  purpose.  In 
161 1,  he  created  this  whole  private  corporation,  assem- 
bled in  meetings  or 'courts,  his  Council.  In  1620,  these 
Councils  having  proved  unsatisfactory,  he  created  a  '  *  close 
corporation," — that  is,  a  small  body  of  persons  incorpo- 
rated with  powers  of  self-perpetuation,  as  his  Council. 
This  he  did  by  his  charter  to  the  Council  for  New  Eng- 
land, located  in  Plymouth,  England,  consisting  of  forty 
persons  named  by  the  King,  who  were  incorporated  by 
the  name  of  "  The  Council  Established  at  Plymouth,  in 
the  County  of  Devon,  for  the  Planting,  Ruling,  Order- 
ing, and  Governing  of  New  England,  in  America,"  and 
were  obliged  to  take  the  oath  of  Councillors  of  the  King. 
This  Council  was  self-perpetuating  and  had  full  govern- 
mental powers  subject  to  the  condition  that  its  acts  and 
proceedings  should  be  "  as  near  as  conveniently  may  be, 
agreeable  to  the  laws,  statutes,  government  and  policy 
of  this  our  Realm  of  England."  Such  a  "  Council"  was 
an  impotent  body.  It  had  no  power  to  grant  charters  to 
the  colonists  conferring  governmental  powers.  It  did 
not  attract  capital,  and,  as  its  members  were  appointed 
or  elected  for  life  and  had  to  govern  as  best  they  could 
without  money  and  without  help  from  the  King,  it  really 
never  did  much  except  to  make  grants  of  land.  After 
an  inglorious  existence,  it  voluntarily  surrendered  its 
franchises  to  the  King. 

Lord  Bacon,  in  his  Essay  on  Plantations,  written  prob- 
ably about  the  time  of  the  revocation  of  the  Virginia 
Charters,  expressed  the  conclusions  at  which  the  thinking 
people  of  England  had  arrived  at  that  time.     He  said : 

For  government,  let  it  be  in  the  hands  of  one,  assisted  with 
some  counsel:  and  let  them  have  commission  to  exercise  mar- 
tial laws,  with  some  limitation,  .  .  .  Let  not  the  govern- 
ment of  the  Plantation  depend  upon  too  many  counsellors,  and 
undertakers,  in  the  country  that  planteth,  but  upon  a  temperate 


64    The  Administration  of  Dependencies 

number:  And  let  these  be  rather  noblemen  and  gentlemen, 
than  merchants;  for  they  look  ever  to  the  present  gain. 

The  result  of  these  experiments  was  to  convince  the 
English  Government  that  a  private  corporation  with  gov- 
ernmental powers  was  an  ineffectual  instrumentality  for 
administering  dependencies  like  the  American  Colonies, 
whose  populations  had  a  will  and  a  juridical  conscience  of 
their  own  which  they  were  capable  of  expressing  by  com- 
bined action.  All  experiments  in  this  direction  relating 
to  the  American  Colonies  practically  ended  in  1624,  upon 
the  revocation  of  the  Virginia  Charters,  though  the  Char- 
ter of  the  Council  for  New  England  was  not  surrendered 
until  some  years  later. 

James  I.  died  April  6,  1625,  while  a  Commission  to  in- 
vestigate the  affairs  of  Virginia  was  still  sitting.  On  May 
23,  1625,  Charles  I.,  after  consultation  with  Sandys,  who 
was  a  great  friend  of  his  and  who  had  joined  in  an  argu- 
ment before  the  Commissioners  in  favor  of  a  new  charter 
to  the  old  Company,  stated  his  intention  in  a  Proclama- 
tion "  to  resume  the  government,"  so  that 

there  should  be  one  uniform  course  of  government  throughout 
all  our  whole  monarchy;  That  the  government  of  the  Colony 
of  Virginia  shall  immediately  depend  upon  ourself,  and  not  be 
committed  to  any  company  or  corporation,  to  whom  it  may  be 
proper  to  trust  matters  of  trade,  but  cannot  be  fit  or  safe  to 
communicate  the  ordering  of  state  affairs,  be  they  of  never  so 
mean  consequence. 

The  Proclamation  stated  that  he  intended  to  establish  a 
royal  Council  in  England  and  another  in  Virginia.  He 
in  fact  did  so,  but  he  left  the  Virginians  their  representa- 
tion in  the  General  Assembly. 

The  effect  of  this  Proclamation  was  to  establish  two 
principles  of  the  administration  of  the  American  Col- 
onies: First,  that,  to  an  orderly  administration  it  was 
necessary  that  there  should  be  an  Imperial  Council  located 


Imperial  Councils,  1606-25  65 

in  England,  composed  of  expert  persons  appointed  by 
the  King,  which  should  be  a  consultative  body  for  the 
King  when  he  was  exercising  the  Imperial  power  on 
behalf  of  England,  and  which  might  also  have  adminis- 
trative powers;  and  second,  that  the  Colonies,  being 
separated  by  distance  so  that  they  could  not  be  incor- 
porated into  the  body  of  the  Realm,  were  to  be  regarded 
as  States  for  some  purposes. 


CHAPTER   V 

IMPERIAL  COUNCILS,    1625-1750 

UNTIL  the  year  1750,  at  least,  there  continued  to  be 
an  Imperial  Council  in  England  for  America, — 
usually  assisted  by  a  referee  Council, — which,  with 
the  King,  represented  England  or  Great  Britain  as  the 
Imperial  State. 

Charles  I.,  for  nine  years  after  his  accession,  adminis- 
tered personally  the  affairs  of  the  American  Colonies, 
acting  with  the  advice  of  his  Privy  Council.  Under  this 
•arrangement,  the  Charter  of  the  Massachusetts  Bay  Com- 
pany was  granted  in  1629,  by  which  the  persons  named  in 
it  were  incorporated  as  a  guild  or  private  company,  hav- 
ing governmental  privileges  but  also  full  power  to  admit 
or  exclude.  The  officers  of  the  guild  were  a  Governor 
and  Assistants,  elected  by  the  members  at  a  "  General 
Court."  The  members  were  called  "  freemen."  No 
place  was  specified  in  which  the  guild  should  be  located, 
though  it  was  granted  land  in  New  England. 

In  1632,  Charles  I.,  by  Charter,  granted  the  region  called 
Maryland  to  Lord  Baltimore  as  Count  Palatine  and  Lord 
Proprietor.  The  region  and  its  inhabitants  were  incor- 
porated by  the  name  of  "  The  Province  of  Maryland." 
The  object  doubtless  was  to  keep  alive,  among  the  col- 
onists, the  idea  of  allegiance  to  the  person  of  the  King, 
and  to  secure  the  personal  responsibility  of  a  Proprietor. 

By  Commission  of  April  28,  1634,  Charles  I.  appointed 
as  "Lords  High  Commissioners  for  the  Plantations,"  the 
Archbishop  of  Canterbury  (William   Laud),   the   Arch- 

66 


Imperial  Councils,  1 625-1 750  67 

bishop  of  York,  the  Lord  Keeper,  the  Lord  High  Treas- 
urer, and  eight  other  Officers  of  State — thus  showing 
that  the  administration  of  the  dependencies  was  re- 
garded as  a  matter  of  very  great  importance  and  that 
the  office  of  Lord  High  Commissioner  for  the  Plan- 
tations was  regarded  as  one  of  great  dignity.  These 
Commissioners  constituted  an  Imperial  Administrative 
Council)  and  not  merely  a  Privy  Council  for  Colonial 
Purposes.  They  were  given  power  to  make  laws  and  or- 
ders for  the  government  of  the  Colonies,  with  the  King's 
assent ;  to  impose  penalties  and  imprisonment  for  offences 
in  ecclesiastical  matters ;  to  remove  governors  and  require 
an  account  of  their  government;  to  appoint  judges  and 
magistrates  and  establish  courts ;  to  hear  and  determine 
all  manner  of  complaints  from  the  Colonies;  to  have 
power  over  all  charters  and  patents,  and  to  revoke  those 
"  surreptitiously  and  unduly  obtained." 

This  last  power  was  doubtless  given  with  reference  to 
the  Massachusetts  Bay  Charter,  under  a  claim  that,  in 
moving  the  whole  administration  of  the  Company  to  New 
England,  an  improper  advantage  had  been  taken  of  the 
omission  in  the  Charter  to  limit  the  location  of  the 
Company  to  some  place  in  England,  and  that  this  action 
was  evidence  of  fraudulent  intent  in  obtaining  the  Char- 
ter. This  claim  was  evidently  unfounded  and  made 
without  sufficient  investigation,  since  Governor  Win- 
throp  states  that  the  omission  was  intentional,  and  that 
the  Company  refused  to  take  the  Charter  unless  it  were 
unlimited  in  the  matter  of  location. 

Under  the  administration  of  the  Lords  High  Commis- 
sioners for  the  Plantations,  the  region  called  Maine  was, 
in  1639,  granted  to  Sir  Ferdinando  Gorges  as  a  County 
Palatine  and  a  Proprietary  Province  by  the  name  of 
"  The  Province  of  Maine." 

The  establishment  of  the  Province  of  Maine,  modelled 
exactly  after  the  Province  of  Maryland,  in  which,  though 


68      The  Administration  of  Dependencies 

the  Lord  Palatine  was  required  to  act  by  the  advice  and 
consent  of  the  freeholders,  he  was  permitted  to  determine 
to  what  extent  they  should  participate  in  the  govern- 
ment,— the  one  immediately  north  of  Virginia  and  the 
other  immediately  north  of  Massachusetts  Bay, — made 
the  Lords  High  Commissioners  exceedingly  unpopular  in 
the  old  Colonies.  In  Massachusetts  Bay,  the  antagonism 
to  them  was  increased  by  a  judgment  obtained  by  their  ef- 
forts in  1635,  declaring  the  Charter  forfeited,  and  by  the 
appointment,  in  1637,  of  Sir  Ferdinando  Gorges  as 
Governor-General  of  New  England.  The  objection  of  the 
colonists  was  not,  however,  to  the  Imperial  Council  be- 
cause it  was  such,  but  to  the  acts  and  beliefs  of  the  men 
who  composed  the  Council. 

The  Commission  to  the  Lords  High  Commissioners  for 
the  Plantations  was  revoked  in  1639,  and  from  that  time 
until  1641  the  troubles  of  England  within  itself  and  with 
Scotland  and  Ireland  made  it  impossible  for  much  atten- 
tion to  be  given  to  the  affairs  of  the  American  Colonies. 
The  administration  of  the  Colonies  reverted  to  the  charge 
of  the  King,  who  acted  under  the  advice  of  a  Committee 
of  the  Privy  Council  for  Foreign  Plantations. 

The  Lords  and  Commons  of  England,  during  the  first 
two  years  of  their  contest  with  King  Charles,  after  his 
flight  from  London  in  1641,  seem  to  have  been  inclined 
to  treat  the  Colonies  as  if  they  were  integral  parts  of  the 
Realm.  They  suggested  that  the  Colonies  send  repre- 
sentatives to  Parliament,  but  the  Colonies  refused ;  and,  in 
1643,  the  Massachusetts  Bay  Colony  and  the  Providence 
Plantations  sent  Agents  to  England  to  present  their  mat- 
ters of  dispute  to  the  Lords  and  Commons  for  disposition, 
Roger  Williams  representing  the  Providence  Plantations. 
After  conference  between  the  Colonial  Agents  and  the 
leaders  of  the  Lords  and  Commons,  there  was  no  more 
talk  of  the  Colonies  being  represented  in  Parliament. 
They  had  realized  that  their  interests  lay  in  the  direction 


Imperial  Councils,  1625- 1750  69 

of  dependence  on  England  as  the  Imperial  State,  not  in 
the  direction  of  merger  with  England. 

The  Lords  and  Commons,  on  November  2,  1643,  by  an 
Ordinance  "  for  Regulating  the  Plantations,"  appointed 
a  Board  of  Commissioners  for  the  Plantations,  which  was 
an  Imperial  Council  with  full  powers,  even  to  the  granting 
of  charters.  This  Ordinance  was  the  first  legislative  act 
emanating  from  the  English  Government  relating  to  the 
American  Colonies  not  enacted  by  the  King  in  Council 
or  by  the  King's  authority.  It  was  enacted  at  a  time  in 
English  history  when  the  English  Government  was  sanely 
democratic  and  republican,  and  was  in  the  hands  of  men 
of  eminent  ability  and  standing.  It  is,  for  this  reason, 
so  pertinent  to  the  present  situation  in  the  United 
States,  that  a  quotation  of  it  may  be  useful.  It  read  as 
follows,  after  the  preamble : 

The  Lords  and  Commons,  finding  it  of  great  importance 
both  to  the  safety  and  preservation  of  the  aforesaid  natives 
and  subjects  of  this  Kingdom,  as  well  from  all  foreign  invasions 
and  oppressions  as  from  their  own  intestine  distractions  and 
disturbances,  as  also  much  tending  to  the  honor  and  advan- 
tage of  his  Majesty's  dominions,  have  thought  fit,  and  do 
hereby  constitute  and  ordain  Robert  Earl  of  Warwick,  Gover- 
nor in  Chief  and  Lord  High  Admiral  of  all  those  Islands,  and 
other  Plantations  inhabited,  planted,  or  belonging  to  any  of 
his  Majesty's  the  King  of  England's  subjects,  or  which  here- 
after may  be  inhabited,  planted,  or  belonging  to  them,  within 
the  bounds  and  upon  the  coasts  of  America:  And,  for  the  more 
effectual,  speedier,  and  easier  transaction  of  this  so  weighty 
and  important  a  business,  which  concerns  the  well-being  and 
preservation  of  so  many  of  the  distressed  natives  of  this  and 
other  his  Majesty's  dominions,  the  Lords  and  Commons  have 
thought  fit,  that  Phillip  Earl  of  Pembroke,  Edward  Earl  of 
Manchester,  William  Viscount  Say  &  Scale,  Phillip  Lord 
Wharton,  John  Lord  Roberts,  Members  of  the  House  of 
Peers,  Sir  Gilbert  Gerrard  Knight  and  Baronet,  Sir  Arthur 


70      The  Administration  of  Dependencies 

Haselrig  Baronet,  Sir  Henry  Vane  Junior,  Knight,  Sir  Ben- 
jamin Rudyer  Knight,  John  Pym,  Oliver  Cromwell,  Dennis 
Bond,  Miles  Corbett,  Cornelius  Holland,  Samuel  Vassall, 
John  Rolls,  and  William  Spurstowe,  Esquires,  Members  of 
the  House  of  Commons,  shall  be  Commissioners,  to  join  in 
aid  and  assistance  with  the  said  Earl  of  Warwick,  Chief 
Governor  and  Admiral  of  the  said  Plantations,  which  Chief 
Governor,  together  with  the  said  Commissioners  or  any  four 
of  them,  shall  hereby  have  power  and  authority  to  provide 
for,  order,  and  dispose  all  things  which  they  shall  from  time 
to  time  find  most  fit  and  advantageous  to  the  well- governing, 
securing,  strengthening,  and  preserving  of  the  said  Planta- 
tions, and  chiefly  to  the  preservation  and  advancement  of  the 
true  protestant  religion  amongst  the  said  planters  and  inhabi- 
tants, and  the  further  enlargement  and  spreading  of  the  Gospel 
of  Christ  amongst  those  that  yet  remaineth  there  in  great  and 
miserable  blindness  and  ignorance:  And,  for  the  better  ad- 
.vancement  of  this  so  great  a  work,  it  is  hereby  further 
ordained,  by  the  said  Lords  and  Commons,  That  the  said 
Chief  Governor  and  Commissioners  shall  hereby  have  power 
and  authority,  upon  all  weighty  and  important  occasions  which 
may  concern  the  good  and  safety  of  the  aforesaid  planters,  to 
call  unto  their  advice  and  assistance  therein  any  other  of  the 
aforesaid  planters,  owners  of  land  or  inhabitants  of  the  said 
Islands  and  Plantations,  which  shall  then  be  within  twenty 
miles  of  the  place  where  the  said  Commissioners  shall  then 
be;  and  shall  have  power  and  authority  to  send  for,  view,  and 
make  use  of,  all  such  records,  books,  and  papers,  which  do  or 
may  concern  any  of  the  said  Plantations:  And  because  the 
well-settling  and  establishing  of  such  officers  and  Governors, 
as  shall  be  laborious  and  faithful  in  the  right  governing  of  all 
such  persons  as  be  resident  in  or  upon  the  said  Plantations, 
and  due  ordering  and  disposing  all  such  affairs  as  concern  the 
safety  and  welfare  of  the  same,  is  of  very  great  advantage  to 
the  public  good  of  all  such  remote  and  new  Plantations,  it  is 
hereby  further  ordained  and  decreed.  That  the  said  Robert 
Earl  of  Warwick,  Governor  in  Chief  and  Admiral  of  the  said 
Plantations,  together  with  the  aforesaid  Commissioners,  Phillip 


Imperial  Councils,  1 625-1 750  71 

Earl  of  Pembroke,  Edward  Earl  of  Manchester,  William  Vis- 
count Say  &  Scale,  Phillip  Lord  Wharton,  John  Lord  Roberts, 
Sir  Gilbert  Gerrard  Knight  and  Baronet,  Sir  Arthur  Haselrig 
Baronet,  Sir  Henry  Vane  Junior,  Knight,  Sir  Benjamin 
Rudyer  Knight,  John  Pym,  Oliver  Cromwell,  Dennis  Bond, 
Miles  Corbett,  Cornelius  Holland,  Samuel  Vassall,  John 
Rolls,  and  William  Spurstowe,  Esquires,  or  the  greater  num- 
ber of  them,  shall  have  power  and  authority,  from  time  to 
time,  to  nominate,  appoint,  and  constitute  all  such  subordi- 
nate Governors,  Councillors,  Commanders,  officers,  and  agents, 
as  they  shall  judge  to  be  the  best  affected,  and  most  fit  and 
serviceable  for  the  said  Islands  and  Plantations;  and  shall 
hereby  have  power  and  authority,  upon  the  death  or  other 
avoidance  of  the  aforesaid  Chief  Governor  and  Admiral,  or 
any  the  other  Commissioners  before  named,  from  time  to  time 
to  nominate  and  appoint  such  other  Chief  Governor  and  Ad- 
miral, or  Commissioners,  in  the  place  and  room  of  such  as 
shall  so  become  void;  and  shall  also  hereby  have  power  and 
authority  to  remove  any  of  the  said  subordinate  Governors, 
Councillors,  Commanders,  officers,  or  agents,  which  are  or 
shall  be  appointed  to  govern,  counsel,  or  negociate,  the  public 
affairs  of  the  said  Plantations,  and  in  their  place  and  room  to 
appoint  such  other  officers  as  they  shall  judge  fit:  And  it  is 
hereby  ordained.  That  no  subordinate  Governors,  Councillors, 
Commanders,  officers,  agents,  planters,  or  inhabitants  what- 
soever, that  are  now  resident  in  or  upon  the  said  Islands  or 
Plantations,  shall  admit  or  receive  any  other  new  Governors, 
Councillors,  Commanders,  officers,  or  agents  whatsoever,  but 
such  as  shall  be  allowed  and  approved  of  under  the  hands  and 
seals  of  the  aforesaid  Chief  Governor  and  High  Admiral  of 
the  said  Plantation,  together  with  the  hands  and  seals  of  the 
aforementioned  Commissioners  or  any  six  of  them,  or  under 
the  hands  and  seals  of  such  as  they  shall  authorize  thereunto: 
And  whereas,  for  the  better  government  and  security  of  the 
said  Plantations  and  Islands,  and  the  owners  and  inhabitants 
thereof,  there  may  be  just  and  fit  occasion  to  assign  over  some 
part  of  the  power  and  authority  granted  in  this  Ordinance  to 
the  Chief  Governor  and  Commissioners  aforenamed  unto  the 


72      The  Administration  of  Dependencies 

said  owners,  inhabitants,  and  others,  it  is  hereby  ordained, 
That  the  said  Chief  Governor  and  Commissioners  before  men- 
tioned, or  the  greater  number  of  them,  shall  hereby  be 
authorized  to  assign,  ratify,  and  confirm  so  much  of  their 
aforementioned  authority  and  power,  and  in  such  manner,  and 
to  such  persons,  as  they  shall  judge  to  be  fit  for  the  better 
governing  and  preserving  the  said  Plantations  and  Islands 
from  open  violence  and  private  disturbance  and  distractions. 
And  lastly,  that  whosoever  shall  do,  execute,  or  yield 
obedience  to  any  thing  contained  in  this  Ordinance,  shall,  by 
virtue  hereof,  be  saved  harmless  and  indemnified. 

Under  this  Ordinance  a  Charter  was  granted  to  Provi- 
dence Plantations  in  March,  1644,  which  was  open  to 
criticism,  if  at  all,  only  for  excess  of  liberality.  This 
Charter,  after  a  long  preamble  in  which  the  Ordinance  of 
November  2,  1643,  was  set  out,  read : 

In  due  consideration  of  the  said  premises,  the  said  Robert 
Earl  of  Warwick,  Governor  in  Chief  and  Lord  High  Admiral 
of  the  said  Plantations,  and  the  greater  number  of  the  said 
Commissioners,  whose  names  and  seals  are  here  underwritten 
and  subjoined,  out  of  a  desire  to  encourage  the  good  begin- 
nings of  the  said  planters,  do  by  the  authority  of  the  afore- 
said Ordinance  of  the  Lords  and  Commons,  give,  grant  and 
confirm  to  the  aforesaid  inhabitants  of  the  Towns  of  Provi- 
dence, Portsmouth  and  Newport,  a  free  and  absolute  charter 
of  incorporation,  to  be  known  by  the  name  of  the  Incorpora- 
tion of  Providence  Plantations,  in  the  Narragansett  Bay,  in 
New  England,  together  with  full  power  and  authority  to  rule 
themselves,  and  such  others  as  shall  hereafter  inhabit  within 
any  part  of  the  said  tract  of  land,  by  such  a  form  of  civil 
government,  as  by  voluntary  consent  of  all,  or  a  greater  part 
of  them,  they  shall  find  most  suitable  to  their  estate  and  con- 
dition; and,  for  that  end,  to  make  and  ordain  such  civil  laws 
and  constitutions  and  to  inflict  such  punishments  upon  trans- 
gressors, and  for  execution  thereof,  so  to  place  and  displace 
officers  of  justice,  as  they,  or  the  greater  part  of  them,  shall 


Imperial  Councils,  1625- 1750  yz 

by  free  consent  agree  unto.  Provided,  nevertheless,  that  the 
said  laws,  constitutions  and  punishments,  for  the  civil  govern- 
ment of  the  said  Plantations,  be  conformable  to  the  laws  of 
England  so  far  as  the  nature  and  constitution  of  the  place  will 
admit.  And  always  reserving  to  the  said  Earl  and  Commis- 
sioners, and  their  successors,  power  and  authority  for  to  dis- 
pose the  general  government  of  that,  as  it  stands  in  relation 
to  the  rest  of  the  Plantations  in  America,  as  they  shall  conceive, 
from  time  to  time,  most  conducive  to  the  general  good  of  the 
Plantations,  the  honor  of  his  Majesty,  and  the  service  of  the 
State. 

The  passage  of  this  Ordinance  by  the  Lords  and  Com- 
mons shows  that,  at  the  moment  in  the  history  of  Eng- 
land vrhen  the  feeling  for  constitutional  liberty  was  most 
intense,  and  when  the  Lords  and  Commons  were  most 
jealous  of  their  own  constitutional  rights,  they  recognized 
that,  from  the  nature  of  things,  they  were  not  fitted  to 
administer  the  affairs  of  the  dependencies,  and  that  it  was 
their  duty  to  place  this  branch  of  government  in  the  im- 
mediate, active,  and  continuous  control  of  a  self-perpetu- 
ating Council  of  experts,  reserving  to  themselves  only  a 
superintendence  of  the  action  of  the  Council  so  as  to  keep 
it  within  proper  bounds  and  so  as  to  direct  its  policy  on 
questions  of  great  national  or  international  importance. 

The  Ordinance  shows  also  that  the  administration  of 
the  affairs  of  the  dependencies  was  regarded  as  a  matter 
of  the  greatest  importance  and  as  requiring  the  attention 
both  of  the  most  distinguished  statesmen,  expert  in  the 
general  art  of  government,  and  of  persons  who  were 
familiar  with  the  circumstances  and  conditions  of  the 
Colonies.  Pym  was  the  leader  of  the  Lords  and  Com- 
mons, and  was  interested  in  the  Providence  Islands 
Company  chartered  in  1630.  Sir  Henry  Vane,  Junior, 
the  son  of  the  Sir  Henry  Vane  who  was  one  of  the  Lords 
High  Commissioners  for  the  Plantations  under  Charles 
L,   was    one    of    the    miost  conspicuous    men    in    the 


74      The  Administration  of  Dependencies 

Lords  and  Commons,  and  largely  controlled  the  most 
important  business.  He  had  emigrated  to  Massachusetts 
in  1635,  to  avoid  religious  persecution.  He  was  elected 
Governor  of  the  Colony  in  1636,  and  gave  it  for  a  year  a 
singularly  energetic  and  wise  administration,  when,  hav- 
ing offended  the  people  by  his  advocacy  of  universal  tol- 
eration, he  was  defeated  for  re-election  and  returned  to 
England.  In  December,  1643,  after  the  death  of  Pym, 
he  became  the  leader  of  the  House  of  Commons.  The 
Board  of  Commissioners  thus  contained  in  its  member- 
ship two  of  the  greatest  statesmen  of  the  times,  one  of 
whom  had  had  actual  experience  in  colonial  administra- 
tion. Others  of  the  Commissioners  had,  through  per- 
sonal or  family  interest  in  the  Council  for  New  England, 
the  Virginia  Company,  and  the  Providence  Islands  Com- 
pany, a  knowledge  of  the  affairs  of  the  Colonies.  The 
Ordinance  was,  therefore,  in  effect,  a  declaration  that  the 
transmarine  dependencies  of  England  were  constitution- 
ally entitled  to  administration  through  a  Council  of 
experts  located  in  the  metropole. 

At  this  time  Charles  had  left  London,  but  the  Lords 
and  Commons  still  considered  him  as  King.  In  appoint- 
ing the  Commissioners,  they  regarded  themselves  as 
substituted,  from  the  necessity  of  the  case,  to  the  rights 
and  powers  of  the  King  over  the  Colonies.  They  did 
not  consider  themselves  at  that  time  as  Parliament,  since 
they  still  believed  that  a  Parliament  could  constitution- 
ally exist  only  by  the  concurrence  of  King,  Lords,  and 
Commons.  The  Board  of  Commissioners  thus  estab- 
lished differed,  as  an  Imperial  Council,  from  that  insti- 
tuted by  King  Charles  in  1634,  only  in  the  fact  that 
it  was  on  a  more  liberal  basis. 

The  Massachusetts  Bay  Colony  could  undoubtedly 
have  obtained  from  the  Commissioners  a  Charter  equally 
as  free  as  that  of  Providence  Plantations,  but  it  merely 
secured  from  them  a  recognition  of  the  Charter  of  1629, 


Imperial  Councils,  1 625-1 750  75 

and  an  extension  of  boundaries  toward  Rhode  Island. 
The  power  of  the  "  freemen  "  of  the  Company  to  admit 
or  exclude  they  would  not  yield,  since  only  by  the  posses- 
sion of  that  power  could  their  religious  discipline  be 
maintained. 

This  system  of  administering  the  dependencies  con- 
tinued until  the  establishment  of  the  Commonwealth,  in 
January,  1649.  One  of  the  first  acts  of  the  Parliament 
(then  consisting  only  of  the  House  of  Commons)  was  to 
appoint  a  Council  of  State  of  forty-one  members,  to 
serve  as  the  Executive  part  of  the  Government.  This  was 
done  by  Act  of  February  13,  1649,  which  not  only  con- 
tained the  Commission  to  the  Council,  but  also  the  In- 
structions of  Parliament  governing  its  action.  Among 
these  Instructions  was  the  following : 

You  are  hereby  authorized  to  use  all  good  and  lawful  means 
for  the  securing,  advancement  and  encouragement  of  the 
trade  of  England  and  Ireland  and  the  dominions  to  them  be- 
longing; and  to  promote  the  good  of  the  Foreign  Plantations 
and  Factories  belonging  to  this  Commonwealth  or  any  of  the 
natives  thereof. 

When  the  year  for  which  this  Council  was  commis- 
sioned expired,  on  February  13,  1650,  the  Commission 
and  Instructions  were  renewed  by  Act  of  the  Parliament, 
and  a  new  Instruction  added,  which  read : 

You  have  also  hereby  power  to  appoint  Committees  or  any 
other  person  or  persons,  for  examinations,  receiving  of  infor- 
mations and  preparing  of  business  for  your  debates  or  resolu- 
tions. 

On  March  6,  1650,  the  Council  of  State  made  an  order 
which  provided  that  the  whole  Council  or  any  five  of 
them  should  be  a  Committee  for  the  Plantations,  and 
in  August,  1650,  the  Parliament  passed  an  Act  "for  the 


76     The  Administration  of  Dependencies 

Advancing  and  Regulating  the  Trade  of  the  Common- 
wealth," by  which  there  was  created  "a  standing  Council 
for  the  regulation  of  trade,"  which  was  an  under-Council 
for  the  affairs  of  the  Colonies.  This  Council  was  known 
as  "the  Council  of  Commerce." 

One  of  the  Instructions  given  by  the  Act  required  the 
Council: 

To  advise  how  the  English  Plantations  in  America  or  else- 
where may  be  best  managed ;  and  how  the  commodities  thereof 
may  be  so  multiplied  that  those  Plantations  alone  may  supply 
the  Commonwealth  of  England  with  whatsoever  it  necessarily 
wants. ' ' 

The  Parliamentary  History  says  of  this  under-Council 
for  Trade : 

These  Commissioners  were  empowered  not  only  to  receive 
proposals  from  any  persons  of  experience  and  ability  in  matters 
of  trade,  but  had  also  authority  to  send  for  the  officers  of  the 
Exchequer,  Mint,  Customs  and  Excise,  for  their  assistance; 
also  to  view  all  books,  records,  &c.,  for  their  further  informa- 
tion ;  and  the  result  of  their  inquiries,  with  their  opinion  there- 
upon, was  required  to  be  laid  before  the  Parliament  or  Council 
of  State. 

Under  this  arrangement,  Parliament  declared  the 
American  Colonies  to  be  "subordinate  and  dependent 
upon  England"  (in  the  Act  of  October  3,  1650,  "for 
reducing  Barbadoes  and  Virginia"),  and,  on  October 
19,  165 1,  passed  the  first  Navigation  Act,  restricting  the 
trade  of  the  Colonies  to  England.  The  establishment 
of  the  Council  of  Commerce  evidently  had  the  immediate 
effect  to  lead  to  a  distinct  understanding  and  statement 
of  the  relation  of  the  Colonies  to  England,  and  to  cause 
the  adoption,  by  the  Council  of  State  and  the  Parliament, 
of  a  strong  and  definite  colonial  policy. 

The  Instructions  to  the  Council  of  State  above  quoted 
were  repeated  in  the  Instructions  given  by  Act  of  Parlia- 


Imperial  Councils,  1 625-1 750  n 

ment  of  November  30,  1652,  and  also  in  the  Act  of  the 
Little  Parliament  of  July  9,  1653. 

On  December  16,  1653,  the  Council  of  State  was  abol- 
ished, and  there  was  substituted  for  it,  under  the  In- 
strument of  Government,  the  Lord  Protector's  Council, 
composed  of  not  less  than  thirteen  nor  more  than  twenty- 
one  persons.  This  Council,  with  the  Lord  Protector, 
formed  the  Imperial  Council,  the  Lord  Protector  being 
granted  "the  chief  magistracy  and  the  administration  of 
the  government  over  the  Commonwealth  of  England, 
Scotland  and  Ireland,  and  the  dominions  thereunto  be- 
longing, and  the  people  thereof,"  which  power  he  was  to 
exercise  with  the  assistance  of  his  Council, — "assistance  " 
being  defined  by  a  subsequent  clause  in  the  Instrument 
of  Government  which  gave  the  Lord  Protector  power 
"to  govern  the  said  countries  and  dominions  in  all  things 
by  the  advice  of  the  Council  and  according  to  these  pres- 
ents and  the  laws." 

The  Council  for  Trade  appointed  by  Parliament  con- 
tinued to  exist  as  an  under-Council  for  the  Lord  Pro- 
tector's Council  until  Cromwell  dissolved  Parliament  on 
January  22,  1655. 

On  March  2,  1655,  the  Lord  Protector's  Council  ap- 
pointed from  its  own  number  a  Committee  for  the  For- 
eign Plantations,  and  on  November  i,  1655,  the  Lord 
Protector,  by  an  Ordinance  in  Council,  constituted  a 
"Council  of  Commerce,"  consisting  of  forty  persons, 
among  whom,  as  the  Parliamentary  History  states,  were 
Cromwell's  son  Richard,  the  Commissioners  of  the  Great 
Seal,  all  the  members  of  the  Council,  the  Judges,  several 
Sergeants  at  law,  and  Aldermen  of  London,  York,  Bristol, 
Newcastle,  Lynn,  Yarmouth,  Dover,  Southampton,  and 
Exeter.  Any  seven  members  were  to  constitute  a 
quorum. 

The  Parliamentary  History  thus  describes  the  powers 
of  this  Council: 


78      The  Administration  of  Dependencies 

The  Council  were  authorized  to  take  into  consideration  all 
ways  and  means  for  advancing,  encouraging  and  regulating 
the  trade  and  navigation  of  the  Commonwealth;  for  which 
purpose  they  were  empowered  to  receive  such  propositions  as 
should  be  made  to  them,  and  to  send  for  the  officers  of  the 
Excise,  the  Customs,  and  the  Mint,  or  such  other  persons 
whom  they  should  deem  capable  of  giving  advice  upon  this 
subject.  They  were  to  examine  the  books  and  papers  of  the 
late  Council  of  Commerce,  and  all  other  public  papers  which 
might  afford  them  necessary  information.  Whatever  proposals 
were  laid  before  these  Commissioners  which  they  judged  to  be 
for  the  advantage  of  trade  and  commerce,  were  to  be  certified 
to  the  Lord  Protector  and  his  Council,  who  were  to  give  the 
necessary  orders  therein. 

It  appears  also  that  a  similar  Council  for  Trade  was 
appointed  by  Parliament  on  March  4,  1657,  which  was 
a  referee  body  for  the  Lord  Protector's  Council,  in  mat- 
ters relating  to  trade  and  plantations. 

After  the  acceptance  by  Cromwell,  on  May  25,  1657, 
of  the  Petition  and  Advice,  the  relations  with  the  Colo- 
nies remained  in  charge  of  the  Lord  Protector  in  Council 
(the  Council  being  given  the  old  name  of  the  Privy 
Council),  until  Cromwell's  death  on  September  3,  1658. 

After  Parliament  had  deposed  Richard  Cromwell,  it 
placed  the  Executive  part  of  the  Government  again  in  the 
hands  of  a  Council  of  State.  This  Council  of  State  con- 
sisted of  thirty-one  persons,  any  nine  of  whom  (six  of  the 
nine  being  members  of  Parliament)  constituted  a  quorum. 
Among  the  Instructions  given  by  Parliament  to  this 
Council  of  State  were  the  following: 

You  are  to  try  to  advance  the  trade  in  England,  Scotland 
and  Ireland,  and  promote  the  good  of  our  Foreign  Plantations 
and  Factories,  and  watch  the  State's  interests  in  foreign  parts. 

You  are  to  consult  on  matters  of  public  concernment,  and 
report  your  opinion  to  Parliament. 


Imperial  Councils,  1625- 1750  79 

You  are  to  send  for  whomever  you  wish  to  bear  witness  or 
give  advice. 

You  may  send  for  any  public  written  documents  you  wish 
to  consult,  on  matters  in  agitation  before  you. 

You  may,  on  emergency,  administer  an  oath  for  the  dis- 
covery of  the  truth. 

You  may  appoint  committees  or  persons  to  take  examina- 
tions, receive  informations,  or  prepare  business  for  your  de- 
bates or  resolutions. 

This  Council  of  State  appointed  a  Committee  for  the 
Foreign  Plantations  from  among  its  own  members,  which 
had  charge  of  the  relations  with  the  Colonies. 

Thus  it  appears  that  during  the  time  England  had  been 
without  a  King,  there  had  been  no  change  in  that  prin- 
ciple of  the  English  Constitution  as  it  existed  before  the 
Commonwealth,  according  to  which  the  management  of 
the  relations  between  England  and  the  Colonies  was  in 
the  hands  of  the  Crown. 

Charles  II.,  on  November  7,  1660,  shortly  after  his  res- 
toration, appointed  a  Council  of  Trade,  and,  on  Decem- 
ber I,  1660,  also  appointed  an  Imperial  Council  called 
"  The  Council  for  Foreign  Plantations."  This  Imperial 
Council  was  composed  in  part  of  high  officials  and  dig- 
nitaries of  the  English  State  and  Church  and  other 
members  of  the  Privy  Council,  and  in  part  of  members 
of  the  trading  guilds.  It  originally  consisted  of  forty 
persons.  While  it  had  administrative  powers  within  a 
somewhat  indefinite  sphere,  it  was  also  an  Under-Coun- 
cil  or  Committee  of  Reference,  which  was  to  ascertain 
the  facts  concerning  complaints  or  propositions  regard- 
ing the  Colonies,  and  report  the  facts,  with  their  conclu- 
sions, to  the  King  in  Council.  The  Instructions  to  this 
Council  were  as  follows: 

I.  You  shall  inform  yourselves,  by  the  best  ways  and  means 
you  can,  of  the  state  and  condition  of  all  Foreign  Plantations, 


8o     The  Administration  of  Dependencies 

and  by  what  commissions  and  authorities  they  are  and  have 
been  governed  and  disposed  of;  and  are  to  procure,  either  from 
such  persons  as  have  any  grants  thereof  from  the  Crown,  or 
from  the  records  themselves,  copies  of  all  such  commissions  or 
grants,  to  be  transcribed  and  registered  in  a  book  provided 
for  that  purpose, — that  you  may  be  the  better  able  to  under- 
stand, judge  and  administer  such  affairs  as  by  your  commission 
and  instructions  are  intrusted  to  your  care  and  management. 

2.  You  shall  forthwith  write  letters  to  every  Governor  for 
the  time  being  of  all  our  English  Plantations,  and  to  every 
such  person  or  persons  who,  by  any  letters  patent  from  us  or 
any  of  our  predecessors,  claims  or  exercises  the  right  of  gov- 
ernment in  any  of  the  said  Plantations;  in  which  letters  you 
are  to  inform  them  of  our  gracious  care  and  provision  in  their 
behalf,  both  in  erecting  a  general  Council  of  Trade  wherein 
their  concernments  are  mingled  and  provided  for  with  [those 
of]  the  rest  of  our  dominions,  and  especially  [in  erecting]  this 
particular  Council,  which  is  applied  only  to  the  inspection, 
care  and  conduct  of  Foreign  Plantations. 

3.  You  are  in  the  said  letters  to  require  the  said  Governors 
and  persons  above-mentioned,  to  send  unto  you  in  writing, 
with  the  advice  of  the  Council  of  every  of  the  said  Plantations 
respectively,  a  particular  and  exact  account  of  the  state  of 
their  affairs,  of  the  nature  and  constitution  of  their  laws  and 
government,  and  in  what  model  and  frame  they  move  and  are 
disposed,  what  number  of  men,  what  fortifications  and  other 
strengths  and  defences  are  upon  the  places,  and  how  furnished 
and  provided  for. 

4.  You  are  to  order  and  settle  such  a  continual  correspond- 
ence that  you  may  be  able,  as  often  as  you  are  required  there- 
unto, to  give  to  us  an  account  of  the  government  of  each 
Colony,  of  their  complaints,  their  wants,  their  abundance  of 
their  several  growths  and  commodities,  of  every  ship  trading 
there  and  its  lading,  and  whither  consigned,  and  what  the 
proceeds  of  that  place  have  been  in  the  late  years;  that 
thereby  the  intrinsic  value  and  the  true  condition  of  each 
part  and  of  the  whole  may  be  thoroughly  understood,  whereby 
a  most  steady  judgment  and  balance  may  be  made  for  the 


Imperial  Councils,  1 625-1 750  81 

better  ordering  and  disposing  of  trade  and  of  the  proceeds 
and  improvement  of  the  Plantations,  that  so  each  place  within 
itself  and  all  of  them  being  collected  into  one  view  and  man- 
agement here,  may  be  regulated  and  ordered  upon  common 
and  equal  ground  and  principles. 

5.  You  are  to  apply  yourselves  to  all  prudential  means  for 
the  rendering  those  dominions  useful  to  England  and  England 
helpful  to  them;  and  for  the  bringing  the  several  Colonies 
and  Plantations  within  themselves  into  a  more  certain,  civil 
and  uniform  way  of  government  and  for  the  better  ordering  and 
distributing  of  public  justice  among  them. 

6.  You  are  to  inquire  diligently  into  the  several  govern- 
ments and  counsels  of  colonies,  plantations  and  distant  do- 
minions belonging  to  other  Princes  or  States,  and  to  examine 
by  what  conduct  and  policies  they  govern  or  benefit  them; 
and  you  are  to  consult  and  provide  that,  if  such  counsels  be 
good,  wholesome  and  practicable,  they  may  be  applied  to  the 
use  of  our  Plantations,  or  if  they  tend  or  were  designed  to  the 
prejudice  or  disadvantage  thereof  or  of  any  of  our  subjects  or 
of  trade  or  commerce,  then  they  may  be  balanced  or  turned 
back  upon  them. 

7.  You  are  to  call  to  your  assistance  from  time  to  time,  as 
often  as  the  matter  in  consideration  shall  require,  any  well 
experienced  persons,  whether  merchants,  planters,  seamen, 
artificers  etc. 

8.  You  are  to  take  especial  care  and  inquire  into  the  strict 
execution  of  the  late  Act  of  Parliament  entitled  an  Act  for 
the  Encouragement  and  Increasing  of  Shipping  and  Naviga- 
tion; that,  as  much  as  in  you  lies,  none  of  those  good  ends 
and  purposes  may  be  disappointed  for  which  the  said  Act  was 
intended  and  designed. 

9.  You  are  to  take  into  your  consideration  how  our  several 
Plantations  may  be  best  supplied  with  servants,  that  neither 
our  Colonies — especially  such  as  are  immediately  under  our 
commissions — may  be  unprovided  in  so  essential  an  assistance, 
nor  any  of  our  good  subjects  may  be  forced  or  enticed  away 
by  any  unlawful  or  indirect  way;  and  how  such  as  are  willing 
to  be  transported  thither  to  seek  better  fortune  than  they  can 


82      The  Administration  of  Dependencies 

meet  with  at  home  may  be  encouraged  thereunto;  and  how 
such  a  course  may  be  legally  settled  for  the  future  that  vagrants 
and  others  who  remain  here  noxious  and  unprofitable  may  be 
so  transplanted,  to  the  general  advantage  of  the  public  as  well 
as  to  the  particular  commodity  of  our  Foreign  Plantations. 

10.  You  are  most  especially  required  to  take  an  effectual 
care  of  the  propagation  of  the  Gospel  in  the  several  Foreign 
Plantations,  by  providing  that  there  be  good  encouragement 
settled  for  the  invitation  and  maintenance  of  learned  and 
orthodox  ministers,  and  by  sending  strict  orders  and  instruc- 
tions for  the  regulating  and  reforming  the  debaucheries  of  the 
planters  and  servants,  whose  ill  example  doth  bring  many 
scandals  upon  Christianity  and  deter  such  as  yet  are  not  ad- 
mitted thereunto  from  affecting  or  esteeming  it.  And  you  are 
to  consider  how  such  of  the  natives  [as  are  servants  or  slaves], 
or  such  as  are  purchased  by  you  from  other  parts  to  be  servants 
or  slaves,  may  be  best  invited  to  the  Christian  faith,  and  be 
made  capable  of  being  baptized  thereunto, — it  being  to  the 
honor  of  our  Crown  and  of  the  Protestant  Religion  that  all 
persons  in  any  of  our  dominions  should  be  taught  the  knowl- 
edge of  God  and  be  made  acquainted  with  the  mystery  of 
salvation. 

11.  You  are  lastly  required  and  empowered  to  advise,  order, 
settle  and  dispose  of  all  matters  relating  to  the  good  govern- 
ment, improvement,  and  management  of  our  Foreign  Planta- 
tions, or  any  of  them,  with  your  utmost  skill,  direction  and 
prudence;  and  in  all  cases  wherein  you  shall  judge  that  further 
powers  and  assistance  shall  be  necessary,  you  are  to  address 
yourselves  to  us  or  our  Privy  Council  for  our  further  pleasure, 
resolution  and  direction  therein. 

Under  this  Council  for  Foreign  Plantations  a  Charter 
was  granted  to  Connecticut  in  1662,  under  which  the 
Colony  and  State  lived  for  one  hundred  and  fifty-six 
years — until  1818;  and  another  to  Rhode  Island  in  1663, 
under  which  the  Colony  and  State  lived  for  one  hundred 
and  seventy-nine  years — until  1 842.  While  these  Colonies 
were  both  allowed  the  right  to  elect  their  own  Governor, 


Imperial  Councils,  1 625-1 750  83 

Assistants  and  Representatives,  and  while  no  provision 
was  made  in  the  Charter  for  the  Crown  having  an  ap- 
pointed representative  in  the  Colony,  this  was  evidently 
permitted  as  a  special  regime,  since  under  this  Council 
there  were  granted,  in  1664,  the  Patent  to  the  Duke  of 
York,  who  succeeded  Charles  II.  as  King,  covering  nearly 
the  whole  region  north  of  Maryland  not  included  in  pre- 
vious charters,  by  which  the  Duke  of  York  was  created 
Lord  Proprietor  and  in  which  there  is  no  mention  of  any 
participation  of  the  people  in  the  government,  and,  in 
1665,  the  Charter  of  Carolina,  which  created  a  County 
Palatine  in  which  the  Lords  Palatine  were  required  only 
to  advise  with  the  representatives  of  the  people. 

By  Instructions  given  to  this  Council  for  Foreign  Plan- 
tations in  July,  1670,  the  Council  was  required 

To  give  strict  order  to  our  several  and  respective  Governors 
that  if  any  of  the  Indian  nations  shall  at  any  time  desire  to  put 
themselves  under  the  protection  of  our  Government,  that  they 
receive  them,  and  that  they  do  by  all  means  seek  firmly  to 
oblige  them,  and  that  they  do  direct  or  employ  some  persons 
purposely  to  learn  the  languages  respectively  of  them,  and 
that  they  do  not  only  carefully  protect  and  defend  them  from 
other  Indians,  and  from  any  that  are  the  adversaries  of  them, 
but  that  they  more  especially  take  care  that  none  of  our  own 
subjects,  nor  any  of  their  respective  servants,  do,  at  any  time 
in  any  way  harm  them,  and  that  if  any  shall  dare  to  offer 
violence  to  them  in  their  respective  persons,  goods  or  posses- 
sions, the  said  Governors  do  severely  punish  the  said  injuries 
agreeable  to  justice  and  right. 

On  September  16,  1672,  Charles  II.  abolished  both  the 
Council  for  Trade  and  the  Council  for  Foreign  Planta- 
tions, and  by  Letters  Patent  formed  a  "  Select  Council  to 
take  Care  of  the  Welfare  of  the  Colonies  and  Plantations, 
and  of  the  Trade  and  Navigation  of  the  King's  Do- 
minions, Domestic  and  Foreign,  and  of  his  Colonies." 


84      The  Administration  of  Dependencies 

This  Council  was  known  as  "  The  Council  for  Trade  and 
Plantations."  It  was  a  referee  body  for  the  King  in 
Council,  being  required  "  to  certify  the  result  of  their 
resolutions  on  any  propositions  submitted  to  them  by 
the  King  for  consideration  and  determination." 

This  was  not  a  sufficient  centralization  of  power  for 
Charles  II.  The  Council  for  Trade  and  Plantations  was 
too  much  inclined  to  advise  measures  which  would  have 
given  the  dependencies  a  just  and  expert  government. 
On  March  12,  1675,  he  abolished  the  Council,  and  placed 
the  administration  of  Imperial  affairs  in  the  hands  of  him- 
self advised  by  a  Committee  of  the  Privy  Council,  called 
the  "  Lords  of  Trade  and  Plantations." 

Under  this  arrangement  the  Charter  was  granted  in 
1681  to  William  Penn,  of  the  Province  of  Pennsylvania, 
to  be  held  and  governed  by  him  as  Lord  Proprietor. 
Under  this  arrangement,  also,  the  Charters  of  Massachu- 
setts Bay  and  Connecticut  were  adjudged  forfeited  on  quo 
warranto  proceedings  in  the  Court  of  King's  Bench — the 
former  in  1684,  and  the  latter  in  1687, — and  Sir  Edmund 
Andros  was  made  Governor-General  of  New  England  in 
1686,  and  of  both  New  England  and  New  York  in  1688. 
Had  the  plans  of  Charles  11.  been  carried  out.  New  Eng- 
land and  New  York  together  would  have  been  formed 
into  a  single  federal  or  unitary  dominion,  according  as 
the  English  Government  had  or  had  not  respected  the 
right  of  the  Colonies  so  consolidated  to  statehood. 

William  III.  came  to  the  throne  under  a  constitutional 
settlement  by  which  he  agreed  with  the  Lords  and  Com- 
mons that  he  was  to  be  the  King  of  England  and  of 
"  the  dominions  thereunto  belonging."  This  was,  in 
effect,  a  declaration  that  England  was  the  Imperial 
State  on  which  the  American  Colonies  were  dependent, 
and  that  his  powers  as  King  were  the  powers  of  the 
official  representative  of  the  Imperial  State.  None  of 
his  royal   predecessors  had  made  any  such  admission. 


Imperial  Councils,  1 625-1 750  85 

The  Stuart  Kings  regarded  the  Colonies  as  belonging  to 
themselves  rather  than  to  the  State  of  England.  In 
view  of  the  careful  and  deliberate  thought  which  was 
given  to  the  ascertainment  of  the  true  principles  of  the 
Constitution  of  the  Realm  and  of  the  Empire  at  the 
time  of  the  accession  of  William  III.,  the  methods  of 
administering  the  dependencies  which  were  used  by  him 
deserve  the  most  careful  attention.  It  is  fair  to  assume 
that  such  of  the  methods  as  were  brought  over  from  the 
times  of  the  Stuarts  were  retained  because  they  were 
approved  by  the  most  distinguished  constitutional  law- 
yers of  England. 

For  six  years  after  his  accession  in  1688,  William  III. 
managed  the  affairs  of  the  Empire  by  the  advice  of  a 
Committee  of  the  Privy  Council,  and  it  was  under  this 
arrangement  that  the  Charter  of  the  Province  of  Massa- 
chusetts Bay  was  granted  in  1691,  seven  years  after  the  for- 
feiture by  quo  warranto  instituted  by  order  of  Charles  II. 
of  its  Charter  of  1629.  By  this  Charter,  it  became  a 
Province,  with  a  royal  Governor,  but  with  the  rest  of  its 
government  elective.  The  five  years  during  which  Massa- 
chusetts Bay  had  been  under  the  immediate  adminis- 
tration of  Governor  Andros,  with  all  his  arbitrariness,  and 
under  the  superintendence  of  Charles  II.,  with  all  his 
ideas  of  absolutism,  had  somehow  made  the  people  of 
the  Colony  willing  to  give  up  their  guild  form  of  organi- 
zation and  to  become  a  Province  under  the  empire  of  the 
State  of  England. 

In  1696  William  III.  returned  to  the  plan  originated  by 
Charles  II.  and  instituted  a  "  Board  of  Commissioners  for 
Trade  and  Plantations,"  composed  of  high  officers  of 
State  and  men  expert  in  colonial  affairs.  The  idea  of  this 
Council  seems  to  have  originated  with  the  House  of 
Commons,  not  with  the  King.  On  January  31,  1696, 
after  the  House  of  Commons  had  been  sitting  as  a  Com- 
mittee of  the  Whole  on  the  State  of  the  Nation  with  Re- 


86    The  Administration  of  Dependencies 

spect  to  Trade  at  various  times  ever  since  December  14, 
1695,  it  came  to  the  following  resolutions  in  Committee 
of  the  Whole: 

1.  Resolved,  That  it  is  the  opinion  of  this  Committee  that 
a  Council  of  Trade  be  established,  by  Act  of  Parliament,  with 
powers  for  the  more  effectual  preservation  of  the  trade  of  this 
Kingdom. 

2.  Resolved,  That  it  is  the  opinion  of  this  Committee,  that 
the  Commissioners  constituting  the  said  Council  of  Trade 
shall  be  nominated  by  Parliament. 

3.  Resolved,  That  it  is  the  opinion  of  this  Committee  that 
none  of  the  said  Commissioners  be  of  this  House. 

8.  Resolved,  That  the  said  Commissioners  be  likewise  em- 
powered to  consider  the  Plantation  Trade  and  all  other  trades 
and  manufactures;  and  the  best  methods  for  securing  and 
improving  the  same. 

The  third  resolution  was  defeated,  but  the  others 
passed. 

The  sixth  resolution,  which  was  adopted,  read : 

Resolved,  That  it  is  the  opinion  of  this  Committee  that  the 
said  Commissioners  do  send  their  directions  for  the  protection 
of  trade  to  the  Lord  High  Admiral  of  England  or  the  Com- 
missioners for  executing  that  office;  which  directions  are  to 
be  controllable  by  his  Majesty  under  his  sign  manual. 

Burnet,  in  his  History  of  His  Own  Times,  says  of  the 
debates  on  these  resolutions : 

The  creation  of  this  Council  of  Trade  by  Act  of  Parliament, 
was  opposed  by  those  who  looked  upon  it  as  a  change  of  our 
Constitution  in  a  very  essential  point.  They  urged  that  the 
Executive  part  of  our  Government  was  in  the  King,  so  that 
the  appointing  any  Council  by  Act  of  Parliament  began  a  pre- 
cedent of  their  breaking  in  upon  the  execution  of  the  law,  in 
which  it  could  not  be  easy  to  see  how  far  they  might  be 


Imperial  Councils,  1 625-1 750  87 

carried.  It  was  indeed  offered  that  this  Council  should  be 
much  limited  as  to  its  powers;  yet  many  apprehended  that  if 
the  Parliament  named  the  persons,  how  low  soever  their 
powers  might  be  at  first,  they  would  be  enlarged  every  ses- 
sion; and,  from  being  a  Council  to  look  into  matters  of  trade, 
they  would  next  be  empowered  to  appoint  convoys  and  cruis- 
ers. This,  in  time,  might  draw  in  the  whole  Admiralty,  and 
that  part  of  the  revenue  or  supply  which  was  appropriated  to 
the  Navy;  so  that  a  King  would  soon  grow  to  be  a  Duke  of 
Venice.  And  indeed  those  who  set  this  on  most  zealously  did 
not  deny  that  they  designed  to  ingraft  many  things  upon  it. 

The  King  was  so  sensible  of  the  ill  effects  which  this  would 
have  that  he  ordered  his  Ministers  to  oppose  it  as  much  as 
possibly  they  could. 

The  fear  that  if  the  King  w^ere  deprived  by  Parliament 
of  the  function  of  administering  the  relations  with  foreign 
States  and  with  the  dependencies,  he  might  "  grow  to 
be  a  Duke  of  Venice,"  was  a  fear  that  he  might  grow  to 
be  a  mere  figurehead, — the  government  of  the  Venetian 
Republic  being  then  so  largely  in  the  hands  of  Adminis- 
trative Boards  that  the  Doge  had  no  powers  whatever. 
The  underlying  thought  of  the  opponents  of  the  measure 
was,  that  it  was  contrary  to  the  nature  of  things  that 
Parliament,  led  by  the  House  of  Commons,  as  the  pop- 
ular part  of  the  Government,  should  perform  the  func- 
tions of  the  State  with  respect  to  foreign  States  and  the 
dependencies,  and  that  such  action  would  be  a  usurpa- 
tion, by  the  House  of  Commons,  of  power  which,  in  the 
nature  of  things,  belonged  to  the  King. 

The  House  of  Commons  yielded  to  the  King's  wishes 
and  the  resolutions  were  not  pressed. 

It  seems  the  more  probable  that  the  functions  of  this 
Council,  had  it  been  created,  would  have  been  extended 
to  the  administration  of  the  American  Colonies,  when  it 
is  considered  that,  at  the  very  time  these  resolutions  were 
adopted,  the  House  of  Commons  was  considering  a  Bill 


88    The  Administration  of  Dependencies 

which  became  an  Act  in  March,  1696,  "  for  Preventing 
Frauds  and  Regulating  Abuses  in  the  Plantation  Trade," 
known  as  the  Navigation  Act  of  1696. 

The  grant  of  powers  by  William  III.  to  the  first  Coun- 
cil for  Trade  and  Plantations  is  thus  summarized  by  Mr. 
Thomas  in  his  History  of  Ptiblic  Departments  : 

The  commission  was  for  promoting  the  trade  of  the  King- 
dom generally,  and  inspecting  the  Plantations  in  America  and 
elsewhere;  and  for  this  latter  purpose,  they  were  directed  to 
take  under  their  care  all  records,  grants,  and  papers,  remain- 
ing in  the  Plantations  office,  or  thereto  belonging:  to  inform 
themselves  of  the  present  condition  of  the  Colonies,  as  well 
with  regard  to  administration  of  the  government  and  justice 
in  those  places  as  in  relation  to  the  commerce  thereof;  to  look 
into  the  usual  instructions  given  to  Governors  of  Plantations, 
and  to  see  if  anything  might  be  added  or  omitted;  to  take 
account  yearly,  by  way  of  journal,  of  the  administration  of 
Governors;  to  consider  of  proper  persons  to  be  Governors  or 
Deputy  Governors,  ...  in  order  to  present  their  names 
to  the  King  in  Council;  to  weigh  all  Acts  of  the  Assemblies 
of  the  Plantations  as  shall  be  sent  to  England  for  the  King's 
approbation;  the  Commissioners  to  report  their  proceedings 
from  time  to  time  to  the  King  or  Privy  Council. 

The  system  thus  established  by  William  III.  was  fol- 
lowed with  slight  changes,  actually  until  the  year  1750, 
and  nominally  until  the  year  1782.  Under  it  the  Crown, 
in  1729,  bought  out  the  Proprietors  of  Carolina  and 
erected  the  two  parts  of  it  into  separate  Provinces  by  the 
names  of  North  Carolina  and  South  Carolina.  Under  it 
also,  in  1732,  a  Charter  was  granted  to  a  guild  or  privil- 
eged company  known  as  "The  Trustees  for  Establishing 
the  Colony  of  Georgia  in  America,"  under  the  control  of 
a  President  and  Common  Council  elected  by  the  mem- 
bers of  the  corporation,  in  accordance  with  which  the 
corporation  was  to  have  the  sole  power  of  legislation  in 


Imperial  Councils,  1 625-1 750  89 

the  Colony  under  the  supervision  of  the  Board  of  Trade 
and  Privy  Council,  for  twenty-one  years.  To  the  Board 
of  Commissioners  for  Trade  and  Plantations,  throughout 
the  whole  period  from  1695  to  1750,  were  referred  all 
colonial  questions  except  some  of  those  arising  in  the 
administration  of  Crown  Colonies,  which  were  under  the 
direct  control  of  the  King  through  a  Secretary  of  State. 
The  Board  reported  the  facts  and  its  conclusions  to  the 
Committee  of  the  Privy  Council  for  Plantation  Affairs. 
and  they  determined  the  matter  and  reported  to  the  King, 
who,  though  of  course  at  liberty  to  accept  or  reject  their 
conclusions,  did  as  matter  of  fact  accept  them  in  practi- 
cally every  instance. 

The  Colonies  sent  their  "  Agents  "  to  present  the  con- 
siderations growing  out  of  the  local  circumstances  and 
conditions  at  the  hearings  before  the  Board  of  Trade  and 
Plantations  and  before  the  Committee  of  the  Privy 
Council  for  Plantation  Affairs.  The  practice  of  keeping 
an  "Agent  "  permanently  at  the  English  Court  seems  to 
have  been  originated  about  the  year  1670,  by  the  Province 
of  Virginia.  From  that  time  forward,  this  practice  seems 
to  have  been  quite  commonly  adopted  by  the  Colonies. 
An  "Agent,"  in  the  nature  of  things,  fulfilled  in  part  the 
functions  of  a  public  and  diplomatic  representative  of  his 
Colony,  and  in  part  the  functions  of  an  attorney-at-law 
for  the  Colony  before  the  Administrative  Tribunals  hav- 
ing in  charge  the  dispositions  of  colonial  affairs  to  be 
made  by  England  as  the  Imperial  State. 

Thus  had  grown  up  a  complete  system  of  Imperial  ad- 
ministration, under  which  the  relations  with  the  depend- 
encies (that  is,  the  affairs  of  the  Empire)  were  separated 
from  the  affairs  of  the  Realm,  and  placed  in  the  hands  of 
Imperial  Councils,  composed  of  experts  in  finance  and 
economics  and  of  high  administrative  officials  of  the 
Realm,  before  which,  as  before  High  Administrative 
Courts,   or  Tribunals  of   International  Arbitration,  the 


90    The  Administration  of  Dependencies 

Colonies  could  come,  in  one  sense  as  suitors,  but  in 
another  sense  as  distinct  political  personalities,  or  States, 
having  rights  which  were  to  be  ascertained  and  declared 
according  to  principles  to  which  they  had  consented. 


CHAPTER   VI 

IMPERIAL  NOMENCLATURE,    1625-1750 

AS  the  system  of  administration  of  the  Colonies  be- 
came more  and  more  fixed  along  certain  lines,  the 
nomenclature  became  fixed  accordingly.  The 
name  "  colony  "  was  the  generic  name  for  any  distinct 
region  and  community  in  America,  controlled  by  the 
English  inhabitants  and  independent  of  all  external 
power  except  the  power  of  the  State  of  England  or 
Great  Britain.  It  was  a  name  which,  from  its  origin, 
conveyed  no  necessary  implication  that  the  community 
called  by  that  name  had  any  political  status  whatever. 
Settlements  were  called  "  colonies  "  equally  when  they 
were  little  more  than  farms  or  factories,  and  when 
they  had  arrived  at  an  organization  so  complete  that 
they  resembled  half-sovereign  States. 

Sir  George  Cornewall  Lewis,  in  his  Essay  on  the  Govern- 
ment of  Dependencies,  published  in  1841,  says  of  the  word 
**  colony  " : 

The  colonicz  were  settlements  of  Roman  citizens  in  Italy, 
who  occupied  a  conquered  town,  divided  the  whole  or  a  large 
part  of  the  lands  belonging  to  its  citizens  among  themselves, 
and  became  the  coloni  or  cultivators  of  the  lands  thus  appro- 
priated. 

Colonia  was  formed  from  colonus  ;  and  colonus  was  formed 
from  colOy  and  signified  a  cultivator.  Colonia  had  also  the 
sense  of  a  farm.  Compare  the  modern  word  "plantation," 
which  means  both  a  farm  and  a  settlement.  The  idea  of 
cultivation,  and  not  of  military  occupation,  was  therefore  con- 
tained in  the  word  colonia. 

91 


92    The  Administration  of  Dependencies 

The  word  colonia  was,  however,  used  in  the  Latin  lan- 
guage, and  the  word  "colony  "  in  the  English,  to  signify 
not  only  a  community  located  in  a  region  for  the  purpose 
of  developing  and  cultivating  it  and  its  inhabitants,  but 
also  to  signify  a  community  which  had  been  detached 
from  the  body  of  a  State,  and  was,  by  reason  of  this  fact, 
related  to  the  State  not  only  by  ties  of  race  and  kindred, 
but  also  politically  or  semi-politically.  The  Oxford  Dic- 
tionary says  of  this  use  of  the  word  "colony  "  : 

The  Roman  writers  used  the  word  colonia  to  translate  the 
Greek  anoiKia^ — literally  "  people  from  home," — that  is,  a 
body  of  emigrants  who  settled  abroad  as  an  independent  self- 
governed  TToAz?  or  State,  unconnected  with  the  iXTjrportokiS 
(metropolis)  or  mother-city,  save  by  religious  ties. 

The  word  "plantation  "  had  this  same  double  meaning 
of  a  settlement  of  planters  and  a  settlement  planted  by 
a  State.  Thus  Lord  Bacon,  in  his  Essay  on  Plantations^ 
said : 

Plantations  are  amongst  ancient,  primitive  and  heroical 
works.  When  the  world  was  young,  it  begat  more  children  ; 
but  now  it  is  old,  it  begets  fewer  :  For  I  may  justly  account 
new  Plantations  to  be  the  children  of  Kingdoms  .  .  .  Plant- 
ing of  countries  is  like  planting  of  woods  ;  for  you  must  make 
account  to  lose  about  twenty  years'  profit,  and  expect  your 
recompense  in  the  end  .  .  .  The  people  wherewith  you 
plant  ought  to  be  gardeners,  ploughmen,  laborers,  smiths,  car- 
penters, joiners,  fishermen,  fowlers,  with  some  few  apothecaries, 
surgeons,  cooks,  and  bakers. 

The  use  of  the  word  "  colony  "  to  describe  every  form 
of  political  community  external  to  a  State  and  constitu- 
tionally related  to  it  probably  arose  from  the  practice  of 
regarding  the  natives  of  the  State  who  emigrated,  and 
their  associates  and  descendants,  as  alone  constituting 
the  political  community.     This  conception  still  prevails  to 


Imperial  Nomenclature,  1 625-1 750     93 

some  extent,  especially  in  France,  the  native  and  foreign 
populations  of  dependent  regions  being  regarded  as  so 
many  individuals  without  status  as  members  of  a  political 
community.  Thus,  M.  Arthur  Girault,  in  his  Principes 
de  Colonisation  et  Legislation  Coloniale,  says : 

One  perceives,  upon  examination,  a  double  civilizing  action 
on  the  part  of  those  who  emigrate  for  colonizing  purposes, 
exercised  at  the  same  time  towards  the  material  resources  and 
towards  the  people  of  the  region. 

First,  towards  the  material  resources.  The  emigrants  im- 
prove the  harbors,  build  roads,  clear  and  cultivate  the  soil, 
exploit  the  mineral  wealth — in  a  word,  utilize  all  the  resources 
which  the  native  inhabitants  have  drawn  on  only  to  a  partial 
extent. 

Secondly,  towards  the  people  of  the  region.  Efforts  are 
made  to  raise  the  natives  to  our  civilization,  to  put  an  end  to 
barbarous  customs.  Missionaries  try  to  convert  them  to  the 
religious  beliefs  prevailing  among  civilized  peoples.  Com- 
mercial agents,  in  quest  of  new  markets  for  their  products,  en- 
gender new  wants  among  them. 

It  is  this  civilizing  action,  this  double  culture  of  the  soil 
and  its  inhabitants,  which  constitutes  the  work  of  colonization 
properly  so-called.  Moreover  this  sense  corresponds  to  the 
original  etymology  of  the  word,  "  colonize  "  being  from  the 
same  root  as  colere,  to  cultivate. 

There  is  thus  implied  in  the  name  "colony,"  as  applied 
to  inhabited  regions  acquired  by  cession,  conquest,  or 
occupation,  a  social  and  economic  superiority,  on  the 
part  of  the  dominant  State,  over  the  related  and  de- 
pendent communities.  Political  superiority,  however, 
by  no  means  necessarily  implies  social  and  economic 
superiority.  A  community  which,  in  the  beginning  of 
the  relationship,  is  socially  and  economically  inferior  to 
the  dominant  State,  may,  with  the  passage  of  time,  come 
to  equal  or  surpass  the  dominant  State  in  civilization, 


94    The  Administration  of  Dependencies 

without  changing  its  relationship  of  political  subordina- 
tion. It  is  even  conceivable  that  a  political  community 
of  higher  civilization  than  that  of  the  State  to  which  it  is 
external  and  related  might,  from  the  very  beginning  of 
the  relationship,  be  in  a  condition  of  political  subordina- 
tion to  this  State  and  might  remain  in  such  a  condition 
indefinitely.  The  name  "colony"  applied  to  such  a 
community  would  be  a  palpable  misnomer. 

Giving  the  word  "colony"  its  widest  meaning,  it 
seems  to  be  the  proper  word  only  when  the  connection 
between  the  dominant  State  and  the  external  related 
community  is  viewed  from  the  social  and  economic  stand- 
point, and  when  the  external  related  community  is  on  a 
lower  scale  of  civilization  than  the  dominant  State,  and 
so  loosely  organized  that  the  power  of  the  dominant  State 
may  be  systematically  applied,  through  an  organized  body 
of  its  own  citizens  who  emigrate  for  the  purpose,  toward 
the  civilization  of  the  natives  and  toward  the  proper  ex- 
ploitation of  the  natural  resources  of  the  region.  It  seems, 
therefore,  that  the  word  "colony  "  can  never  properly  be 
adopted  as  the  generic  word  to  describe  the  communities 
external  to  a  State  and  under  its  political  control  or 
superintendence. 

The  word  "  mother-country  "  to  denote  the  Imperial 
State,  and  the  word  "  colonies  "  to  denote  its  dependen- 
cies,— that  is,  to  describe  the  political  relationship, — 
were,  however,  in  1750,  in  almost  universal  use  in 
Great  Britain  and  America.  The  political  relationship 
had  not  been  carefully  distinguished  from  the  social  and 
economic  relationship. 

The  first  American  Charter  in  which  an  American  Col- 
ony was  recognized  as  having  a  political  status  was  that  of 
Maryland  of  1632,  granted  to  Lord  Baltimore.  In  that 
Charter,  Maryland  was  declared  to  bea  "  Province,"  and 
its  relations  to  the  State  of  England  were  declared  to  be 
exactly  those  which  the  County  Palatine  of  Durham  held 


Imperial  Nomenclature,  1 625-1 750     95 

to  that  State.  A  county  palatine  differed  from  an 
ordinary  county  in  that  the  count  palatine  exercised 
some  royal  functions  and  was  regarded  as  the  representa- 
tive of  the  person  of  the  King.  The  County  Palatine  of 
Durham  was  a  border  county  between  England  and  Scot- 
land and  on  that  account  had,  under  the  Bishops  of  Dur- 
ham as  Counts  Palatine,  enjoyed  a  semi-independence, 
having  almost  complete  statehood,  though  being  subject 
to  the  superintendence  of  the  King  and  Parliament  of 
England.  Lord  Baltimore,  as  Count  Palatine  and  Lord 
Proprietor  of  Maryland,  was  the  representative  of  the 
person  of  the  King, —  the  King's  Deputy,  who  exercised 
the  same  powers  as  the  King  might  have  exercised  if  he 
had  been  present,  subject,  however,  to  the  King's  ratifi- 
cation or  disapproval  by  order  in  Council. 

The  name  "  province,"  as  applied  to  such  a  political 
community  as  the  inhabitants  of  Maryland  formed,  seems 
to  have  been  taken  from  the  public  law  of  Rome  relating 
to  the  administration  of  dependencies.  Perhaps  the  prov- 
inces of  the  Realm  of  France,  as  they  then  existed,  may 
also  have  suggested  its  use. 

Mr.  C.  P.  Lucas,  in  an  appendix  to  the  1891  edition  of 
Sir  George  Cornewall  Lewis's  Essay  on  the  Government 
of  Dependencies,  has  this  to  say  concerning  the  meaning 
of  the  word  "  province  " : 

Provincia  is  derived  by  Festus  ixonvpro  and  vincere,  accord- 
ing to  which  etymology  it  would  mean  "  a  country  formerly 
conquered."  This  etymology  has  been  adopted  by  the  mod- 
erns, with  no  other  modification  than  that  suggested  by  Vos- 
sius,  viz.,  that  pro  should  be  taken  not  for  ante,  but  iox  procul. 
Provincia  would  thus  signify  "  a  country  conquered  at  a  dis- 
tance." This  etymology,  however,  seems  objectionable  on 
two  grounds:  i.  Provincia  is  not  formed  by  a  proper  analogy 
from  vinco ;  it  ought  rather  to  be  formed  from  a  past  tense 
or  participle,  like  victor,  victoria.  2.  The  derivation  (rom  vinco 
does  not  satisfactorily  explain  the  other  meaning  o( provincia, 


96    The  Administration  of  Dependencies 

viz.:  "function,"  "department,"  "business";  which  it  ap- 
pears to  have  had  at  an  early  period,  since  this  usage  occurs 
in  familiar  language. 

It  seems  to  me  therefore  most  probable  i\\3i\.  provtncia  is  con- 
tracted ixova  providentia^  and  originally  meant  "  that  which  a 
person  had  to  look  after,  to  attend  to,  to  care  for";  that  its 
primitive  meaning  was  "business,"  "function,"  "depart- 
ment ";  and  that  it  acquired  the  secondary  sense  of  "  a  for- 
eign dependency"  of  Rome,  because  the  management  of  the 
district  was  the  department  of  one  of  the  consuls  or  prsetors. 

The  contraction  of  provincia  from  providentia  is  not  greater 
than  in  other  similar  words;  and  the  change  of  t  into  c  after  n 
has  nothing  remarkable.  Concio  from  conventio  affords  a 
parallel  to  both  changes. 

A  "  province,"  in  the  American  and  British  public  law 
of  1750,  was  a  species  of  "  colony,"  which  had,  as  a  part 
of  its  constitutional  settlement  with  Great  Britain,  a 
representative  of  the  State  of  Great  Britain  residing 
within  it,  who  participated  in  the  government. 

Provinces  were  of  two  kinds — those  over  which  the 
Crown  (that  is,  the  State)  of  England  or  Great  Britain 
had  granted  to  individuals,  as  Counts  Palatine  and  Lords 
Proprietors,  full  powers  of  government,  which  they  held, 
to  themselves  and  their  heirs,  subject  to  the  conditions 
and  trusts  specified  in  the  Charter  in  favor  of  the  State 
of  Great  Britain  and  the  inhabitants  of  the  province; 
and  those  immediately  dependent  on  the  Crown, 
in  which  the  King  was  represented  by  a  Governor, 
appointed  by  the  King  in  Council  and  holding  office 
during  his  pleasure,  who  was  the  agent  of  the  King, 
and  the  public  and  diplomatic  agent  of  England  or 
Great  Britain,  and  the  Chief  Executive  of  the  province. 

Under  grants  to  individuals  as  Counts  Palatine  and 
Lords  Proprietors,  the  inhabitants  were  allowed  to  partici- 
pate in  the  government  only  to  such  extent  as  the  Lords 


Imperial  Nomenclature,  1 625-1 750     97 

Proprietors  saw  fit.  This  resulted  usually  in  the  inhabi- 
tants being  represented  only  in  the  House  of  Representa- 
tives. When  the  King  created  a  province  immediately 
dependent  upon  himself,  the  invariable  purpose  of  the 
English  and  British  Government  was  to  have  not  only 
the  Governor,  but  also  his  Council  (which  was  at  the 
same  time  his  Privy  Council  and  the  Upper  House),  ap- 
pointed by  the  King.  When  only  the  Governor  was  ap- 
pointed by  the  King,  it  was  because  the  demand  of  the 
inhabitants  of  the  province  for  statehood  to  the  highest 
extent  possible  was  so  strong  as  not  to  permit  the  Council 
to  be  an  appointed  body. 

The  acceptance,  by  the  various  communities  on  and 
near  Massachusetts  Bay  and  on  the  coast  above,  of  the 
Charter  of  1691,  by  which  all  these  communities  were 
united  into  a  province,  under  the  name  of  "  The  Prov- 
ince of  Massachusetts  Bay,"  marked  a  great  advance  in  the 
political  thought  of  both  England  and  America.  It  had 
been  realized  that  the  establishment  of  a  region  as  a 
province  was  a  recognition  of  it  as  a  State  in  a  relation- 
ship of  constitutional  (and  hence  of  conditional  and 
limited)  dependence  upon  the  Imperial  State,  and  that 
the  provincial  form  of  government  solved  the  problem 
how  to  justly  and  fairly  maintain  this  constitutional  de- 
pendence. 

Perhaps  one  of  the  causes  which  led  to  the  willingness  of 
Massachusetts  Bay,  in  1691,  to  accept  a  Charter  by  which 
it  became  a  province,  was  the  position  taken  by  England 
with  regard  to  Ireland.  Though  William  and  Mary  had 
been  declared  to  be  King  and  Queen  of  "England,  Scot- 
land and  Ireland  and  the  dominions  thereunto  belong- 
ing," nevertheless,  when  Ireland,  in  1690,  presumed  to 
put  itself  on  an  equality  with  England,  claiming  to  be 
an  independent  State,  in  personal  union  with  England 
through  the  King,  by  its  Lords  and  Commons  holding 
what  they  called  a  Parliament  in  Dublin  and  purporting  to 


98    The  Administration  of  Dependencies 

recognize  King  William  as  King,  English  troops  at  once 
reduced  it  to  subjection,  and  it  was  constitutionally- 
settled  to  be  a  province,  with  a  royal  Governor  and 
Council,  a  hereditary  House  of  Peers,  and  an  elected 
House  of  Commons.  Thenceforward,  it  was  evident 
that  the  constitutional  settlement  of  1689  between  King 
and  people  had  not  operated  to  convert  the  colonies 
of  England  into  independent  States,  and  that  the  high- 
est grade  of  constitutional  relationship  attainable  by 
any  political  community  external  to  England  and  sub- 
ject to  the  control  of  that  State,  was  that  of  a  province 
with  a  large  degree  of  statehood.  After  Massachu- 
setts Bay  had  taken  the  lead,  there  was  no  reason  for 
the  other  Colonies  to  refuse  to  occupy  the  same  kind  of 
position  in  the  Empire.  All  the  other  Colonies  had  be- 
come provinces  before  1750,  except  Connecticut  and 
Rhode  Island;  and,  as  before  said,  they  were  guilds  or 
privileged  companies  and  hence  rightfully  subject  to 
be  converted  into  provinces  at  any  time,  by  mere  re- 
sumption by  the  Crown  of  its  rights.  That  no  advantage 
was  taken  by  William  HI.  of  the  surrender  of  the  Rhode 
Island  Charter  to  Governor  Andros  and  of  the  judgment 
of  forfeiture  rendered  by  default  against  Connecticut  in 
1687,  was  doubtless  due  to  the  fact  that  these  Colonies 
gave  no  special  cause  for  forfeiting  their  franchises  as 
guilds,  and  that,  had  the  King  resumed  the  government 
without  special  cause,  however  legal  his  action  might 
have  been,  it  would  have  been  regarded  by  these  Colonies 
as  a  violation  of  their  constitutional  rights.  Maryland 
and  Pennsylvania  were  under  a  merely  nominal  control 
of  Lords  Proprietors  and  were  hence  royal  provinces  in 
fact,  though  proprietary  provinces  in  name. 

The  form  of  words  by  which  provinces  were  created 
was  in  every  case  such  as  to  show  that  the  province  was 
dependent,  for  its  rights  of  statehood,  upon  the  recogni- 
tion and  disposition  of  the  State  of  England,  as  an  ex- 


Imperial  Nomenclature,  1 625-1 750     99 

ternal  Sovereign  having  power  to  adjudicate  concerning 
the  degrees  of  statehood  which  its  dependencies  ought 
properly  to  enjoy.  Thus  in  the  Charter  of  Maryland 
of  1632  the  words  used  by  Charles  I.  were  "  do  erect 
and  incorporate  into  a  province."  In  the  Charter  of 
Maine  of  1639,  his  words  were  "  do  create  and  incor- 
porate into  a  province."  In  the  Charter  of  Carolina 
of  1662  the  expression  used  by  Charles  II.  was  "  do 
erect,  incorporate  and  ordain  into  a  province."  In  the 
Charter  of  Pennsylvania  of  168 1,  Charles  II.  "  erected  " 
Pennsylvania  "  into  a  province."  In  the  Charter  of 
Massachusetts  Bay  of  1691,  the  regions  specified  were, 
by  William  III.,  "  erected,  united  and  incorporated  into 
a  province."  The  usage  in  this  respect  has  a  peculiar 
interest,  because  the  words  "  erect  "  and  "create  "  were 
used  in  resolutions  offered  in  the  Constitutional  Conven- 
tion of  1787  to  describe  the  power  of  Congress  over  the 
"new  states"  (that  is,  the  dependencies)  which  were 
expected  to  be  formed  in  the  Northwest  Territory. 

By  the  practice  which  prevailed  between  the  years  1700 
and  1750,  any  region  and  community  was  considered  a 
"  province  "  of  which  the  King,  on  forfeiture  of  a  charter 
under  which  it  had  existed  as  a  guild  or  a  county  pala- 
tine, had  resumed  the  government  by  Proclamation  or 
Letters  Patent  through  an  appointed  Governor  or  an  ap- 
pointed Governor  and  Council,  without  granting  a  new 
charter  formally  "  erecting  "  the  region  and  community 
into  a  province.  Under  this  practice,  Virginia,  which 
before  1700  was  called  a  "  Dominion  "  was  called  a. 
"  Province." 

The  name  "  province  "  by  no  means  implied  absolute 
power  on  the  part  of  the  Imperial  State  over  the  popula- 
tion erected  into  a  province.  Indeed,  if  Mr.  Lucas's 
derivation  be  correct,  the  word  "  province  "  contained, 
in  itself,  a  recognition  that  the  Imperial  State  was  under 
an  obligation    in    making   its   adjudications   concerning 


loo  The  Administration  of  Dependencies 

the  degree  of  statehood  to  which  the  province  was  en- 
titled, to  adapt  the  form  of  government  to  the  local 
circumstances  and  conditions  to  the  extent  that  they 
could  be  met  consistently  with  the  higher  obligations 
which  required  it  to  act  for  the  general  welfare.  It  did 
not  imply  any  lack  of  consent  of  the  population  of  the 
province  to  the  form  of  government  under  which  they 
were,  or  an  absence  of  participation  by  them  in  their 
own  government.  It  assumed  that  a  constitutional  re- 
lationship existed  between  the  Imperial  State  and  the 
province  as  a  dependent  State,  and  implied  that  the 
power  of  the  Imperial  State  was  a  power  of  disposition  as 
distinguished  from  a  power  of  legislation. 

Besides  the  words  "colony"  and  "province,"  the 
words  "dominion"  or  "dominions"  and  "territory" 
or  "territories  "  were  used  to  describe  the  American 
Colonies  as  related  to  England  and  Great  Britain. 

In  the  Virginia  Charters  of  1606,  1609,  and  161 1,  the 
"Colonies  "  or  "Plantations  "  in  Virginia  were  uniformly 
treated  as  a  part  of  the  "dominions  "  of  the  King.  Thus 
in  both  the  Charter  of  1606  and  that  of  1609  it  was  pro- 
vided that : 

All  and  every  the  persons  being  our  subjects,  which  shall 
dwell  and  inhabit  within  every  or  any  of  the  said  Colonies 
and  Plantations,  and  every  of  their  children  which  shall  hap- 
pen to  be  born  within  any  of  the  limits  and  precincts  of  the 
said  Colonies  and  Plantations,  shall  have  and  enjoy  all  liber- 
ties, franchises  and  immunities  within  any  of  our  other  domin- 
ions, to  all  intents  and  purposes  as  if  they  had  been  abiding 
and  born  within  this  our  Realm  of  England,  or  any  other  of 
our  said  dominions. 

The  same  provision  is  found  in  the  other  Colonial  Char- 
ters with  the  addition  that  children  born  at  sea  to  Eng- 
lish or  British  subjects  going  to  or  returning  from  the 
Colonies  were  given  the  same  privileges. 


Imperial  Nomenclature,  1 625-1 750    loi 

The  word  "dominion"  of  course  means  literally  the 
power  which  the  head  of  a  household  {domus)  exercises 
over  it. 

In  the  civil  law,  to  quote  the  words  of  Mr.*  Gordon 
Campbell,  in  his  Treatise  on  Roman  Law: 

Dominium  gives  to  him  in  whom  it  is  vested  the  power  of 
applying  the  subject  to  all  purposes,  except  such  as  are  incon- 
sistent with  his  relative  or  absolute  duties. 

The  Century  Dictionary  defines  "dominion"  in  the 
civil  law  as  "  the  ownership  of  a  thing,  as  opposed  to  a 
mere  life  interest,  to  an  equitable  right,  to  a  merely  pos- 
sessory right,  or  to  a  right  against  a  particular  person." 

In  this  wide  sense,  the  same  dictionary  defines  "  do- 
minion "  as  "  a  territory  and  people  subject  to  a  specific 
government  or  control." 

Up  to  the  time  of  the  Commonwealth,  the  word  "  do- 
minions "  seems  to  have  been  used  in  this  large  meaning. 
Then,  however,  there  seems  to  have  arisen  a  doubt 
whether  the  word  "dominions"  was  wide  enough  to 
cover  all  the  region  under  every  form  and  in  every  degree 
of  connection  with  the  State  of  Great  Britain.  In  the 
Act  of  May  17,  1649,  abolishing  the  office  of  King,  Charles 
I.  is  spoken  of  as  "Charles  Stuart,  late  King  of  England, 
Ireland,  and  the  territories  and  dominions  thereunto  be- 
longing," and  in  the  Act  of  May  19,  1649,  establishing 
the  Commonwealth,  the  expression,  "  the  people  of 
England  and  of  all  the  dominions  and  territories  there- 
unto belonging,"  is  used.  In  the  Instrument  of  Govern- 
ment of  1653,  the  expression  used,  however,  is  "  the 
Commonwealth  of  England,  Scotland  and  Ireland,  and 
the  dominions  thereunto  belonging."  Though  Cromwell 
was  by  this  Act  declared  to  be  "  Lord  Protector  of  the 
Commonwealth  of  England,  Scotland  and  Ireland,  and 
the  dominions  thereunto  belonging,"  his  title  was  after- 
wards  changed    by   the   addition   of   the   words   "  and 


I02  The  Administration  of  Dependencies 

territories"  after  the  word  "dominions,"  and  his  son 
Richard  was  given  the  title  in  this  enlarged  form. 

Thus  there  was  made  a  division  of  the  "  dominions" 
of  the  English  State  into  two  classes,  the  dominions  of 
and  within  the  State,  and  the  dominions  belonging  and 
external  to  the  State. 

After  the  restoration  of  Charles  II.,  a  question  arose 
as  to  the  proper  title  of  Virginia,  which,  in  its  Articles  of 
Surrender  to  the  army  of  the  Commonwealth,  in  165 1,  had 
agreed  that  it  should  "  be  and  remain  in  due  obedience  and 
subjection  to  the  Commonwealth  of  England."  In  the 
Acts  of  the  Colonial  Assembly,  during  the  period  from 
1660  to  1666,  Virginia  was  described  as  "  the  Country 
of  Virginia. "  In  1666,  Charles  II.  took  Virginia  under 
his  direct  government  by  Letters  Patent,  in  which  it  was 
'!  declared  and  granted  "  that  all  the  King's  sub- 
jects inhabiting  within  the  Colony  should  "  have  their 
immediate  dependence  upon  the  Crown  of  England, 
under  the  rule  and  government  of  such  Governor  or  Gov- 
ernors as  we,  our  heirs  or  successors,  shall  from  time  to 
time  appoint  in  that  behalf."  Thenceforward  Virginia 
was  called  "  the  Dominion  of  Virginia,"  and  in  1682, 
upon  the  reorganization  after  Bacon's  Rebellion,  the 
General  Assembly  adopted  this  name  as  the  description 
of  the  Colony. 

When  James  II.,  in  1686,  converted  New  England  and 
New  York  into  a  single  Government  by  means  of  a  com- 
mission to  Sir  Edmund  Andros  as  Governor-General,  the 
region  and  its  inhabitants  were  officially  styled  "  The 
Territory  and  Dominion  of  New  England,"  and  were 
commonly  called  "  The  Dominion  of  New  England." 

It  thus  appears  that  a  "  dominion  "  was  a  specific  part 
of  the  dominions  "belonging  to  "  England,  which  differed 
from  a  "  province"  merely  in  the  fact  that  it  had  not 
been  "erected"  or  "created"  or  "incorporated  "  as 
such.    A  dominion  was,  in  fact,  a  province  arising  by  rec- 


Imperial  Nomenclature,  1 625-1 750    103 

ognition  of  the  Crown,  and  not  by  express  grant.  The  title 
of  Virginia  as  the  "  Old  Dominion  "  is  justified  from  the 
fact  that  its  relationship  to  the  State  of  England  did  not 
legally  change  between  1625,  when  Charles  I.  resumed 
its  government,  and  the  Declaration  of  Independence,  so 
that  as  it  was  a  "  Dominion  "  in  1682,  it  was  a  "Domin- 
ion "  from  1625  to  1776,  and  hence  entitled  to  the  credit 
of  having  attained  in  advance  of  all  the  other  Colonies 
to  the  ultimate  type,  later  called  a  "  province." 

Up  to  the  time  of  the  Commonwealth,  the  word 
**  territories,"  when  used  in  the  Colonial  Charters,  seems 
to  have  no  certain  meaning.  It  is  used  in  such  a  way 
that  it  may  be  taken  as  meaning  land  under  government, 
or  outlying  land,  or  vacant  land,  or  settled  land  external 
to  England,  or  land  occupied  by  barbarous  tribes,  and 
perhaps  with  other  meanings.  In  the  time  of  the  Com- 
monwealth it  seems  to  have  been  used  with  a  specific 
meaning,  though  exactly  what  that  meaning  was,  it  is 
somewhat  difficult  now  to  determine. 

The  etymology  of  the  word  "territory"  has  been  dispu- 
ted from  the  earliest  times.  Grotius,  in  his  Peace  and  War 
(book  iii.,  chapter  vi.,  sections  3  and  4),  and  Barbeyrac, 
his  commentator,  in  his  notes  to  the  passage,  go  exten- 
sively into  the  question,  and  M.  Pradier-Fod6r6,  in  his 
very  recent  Traits  de  Droit  International  Public  (vol.  ii., 
section  612),  also  considers  it  with  some  care.  The  de- 
rivation which  Grotius,  writing  in  1625,  adopted,  on  the 
authority  of  Flaccus,  Frontinas,  and  Pomponius,  all  Latin 
writers  of  the  classical  period,  in  which  he  was  followed  by 

the  learned  "  Gronovius,  and  which  seems  necessitated 
by  the  rules  of  the  Latin  language,  is  from  the  Latin  verb 
terreo,  meaning"  to  hold  in  subjection  by  terror  or  exces- 
sive fear,  "the  double  suffix  torium  giving  the  whole  word 
territorium  in  Latin  the  literal  meaning  of  "  a  place  per- 
taining to  a  person  who  holds  in  subjection  through  terror 
or   excessive    fear," — that    is,    through    awe    or   dread. 


I04  The  Administration  of  Dependencies 

creating  obedience,  respect,  and  reverence, — and  the  de- 
rived meaning  of  "  a  place  subject  to  the  exclusive  control 
of  a  person  or  a  political  community." 

The  first  writer  who  ever  attempted  to  define  the  word, 
Marcus  Terentius  Varro,  a  friend  of  Cicero's,  who  wrote 
about  20  B.C.,  defined  territorium  as  colonis  locus  com- 
ntuniSf  qui  prope  oppidum  relinquitur  —  that  is,  "a  place 
common  to  the  farmers  (or  colonists)  which  is  left  near  a 
town."  In  the  passage  from  which  this  is  taken  he  de- 
rives the  word  from  the  Latin  verb  terere,  to  wear  away 
(by  rubbing,  that  is,  by  frequent  working  over  or  by  fre- 
quent footsteps).  This  derivation  seems  impossible,  as 
the  derived  substantive  would,  under  the  rules  of  the 
Latin  language,  have  been  tritorium.  Assuming,  there- 
fore, that  Varro  was  correct  as  to  the  meaning  of  the 
^yord  in  his  time  (to  doubt  which  would  be  rationally  im- 
possible), but  that  he  was  mistaken  concerning  the  deri- 
vation (which  is  by  no  means  improbable),  the  character 
of  the  early  Roman  colonization  makes  it  possible  to 
trace  a  close  connection  between  Varro's  definition  and 
the  verb  terreo.  The  first  Roman  colonies  were,  to  use 
the  language  of  Sir  George  Cornewall  Lewis,  "  garrisons 
of  Roman  citizens  placed  in  conquered  towns  of  Italy, 
the  colonists  retaining  their  full  rights  as  Roman  citi- 
zens." Niebuhr,  in  his  History  of  Rome,  informs  us  that 
all  the  towns  of  Italy,  in  the  ancient  days,  had  common 
land  outside  the  town,  and  that  in  case  of  conquest  by 
Rome,  the  practice  was  for  the  conquerors  to  confiscate 
one  third  of  both  the  town  land  and  the  common  land,  and 
to  allot  to  each  member  of  the  colony  sent  there  to  act 
as  a  garrison  a  quantity  of  land  inside  the  town  sufficient 
for  a  garden,  but  insufficient  for  the  support  of  a  family, 
so  that  the  colonists  had,  in  order  to  support  life,  to 
cultivate  the  common  land  and  share  in  its  product. 
Such  "  land  common  to  the  farmers  (or  colonists)  left 
near  the  town"  may  very  well  have  been  called  terri- 


Imperial  Nomenclature,  1 625-1 750    105 

torium,  because  the  old  population  and  all  foreigners  who 
were  inclined  to  the  side  of  the  old  population  were  kept 
out  of  it,  or  held  in  subjection  while  in  it,  by  fear.  Such 
a  region  was,  as  we  say,  "commanded  "  by  the  garrison. 

Assuming  that  the  word  "  territory"  is  derived,  as  it 
seems  necessary  to  conclude,  from  the  Latin  terreo,  and 
to  mean  a  place  held  in  subjection  by  terror,  it  is  the  one 
word  which,  when  without  qualifying  language,  expresses 
the  idea  of  a  region  and  people  under  the  unlimited  and 
unconditioned  power  of  an  external  human  will.  Of 
course  a  region  held  in  subjection  through  terror  might 
at  the  same  time  be  governed  according  to  just  princi- 
ples, and  therefore  a  power  over  "  territory  "  dependent 
on  a  State,  to  dispose  of  it  and  make  all  needful  rules  and 
regulations  respecting  it,  is  not  objectionable  to  the  most 
advanced  political  thought. 

One  of  the  meanings  which  has  at  all  times  been  at- 
tached to  the  word  "  territory"  has  been  that  given  by 
Varro,  of  a  region  adjacent  to  an  organized  community 
and  dependent  upon  it  for  its  government,  though  not 
forming  a  part  of  the  personality  of  the  community. 

The  derived  meaning  of  "  territory," — "  all  the  space 
in  which  the  depositaries  of  the  public  authority  are  able 
to  execute  the  will  of  the  Sovereign  by  the  employment 
of  the  force  at  their  disposal "  (Pradier-Foder^),  or,  "  the 
extent  of  land  and  water  which  depends  exclusively  from 
the  supreme  power  of  a  State"  (de  Martens), — doubtless 
arose  from  regarding  the  depositaries  of  the  supreme 
governmental  authority  as  the  supreme  power  in  the 
State,  so  that  the  town,  city,  or  State  itself,  and  its 
territorium  or  dependencies,  were  regarded  as  constitut- 
ing a  single  territorium  over  which  they  were  supreme. 

A  possible  explanation  of  the  use  of  the  word  "terri- 
tories "  with  "dominions"  in  the  time  of  the  Common- 
wealth is  that  at  that  time  publicists  doubted  whether 
a  State,  as  such,  could  be  said  to  have  "dominions," 


io6  The  Administration  of  Dependencies 

since  the  existence  of  "dominions  "  implied  a  person  who 
was  the  dominus  or  lord  of  the  region  under  dominion. 
A  State  was  not  at  that  time  recognized  by  all  publicists 
as  a  person.  The  institution  of  the  Crown,  in  which  the 
title  to  property  belonging  to  the  State  of  England  was 
vested,  was  due,  in  part,  to  the  fact  that  the  State  of  Eng- 
land, as  such,  was  supposed  not  to  be  a  legal  corporate 
person  capable  of  holding  and  managing  real  estate.  If 
it  had  not  sufficient  legal  personality  to  hold  real  estate, 
it  was  doubtless  argued  that  a  fortiori  it  was  not  a  moral 
person,  charged  with  the  moral  obligations  which  are 
implied  in  the  word  "  dominion,"  and  that  consequently 
the  power  of  England  over  regions  external  to  itself 
arose  from  the  fact  that  these  regions  were  merely  appur- 
tenances "belonging  to"  the  State  or  "territory,"  or 
parts  of  the  whole  body  of  "  territories,"  subject  to  the 
power  of  the  State,  as  its  "  property." 

Another  meaning  which  "  territory  "  or  "  territories" 
seems  sometimes  to  have  had  in  the  literature  of  the 
period,  was  that  of  unsettled  or  wild  lands.  The  use  of 
the  word  in  this  sense  perhaps  arose  from  the  supposition 
that  it  was  derived  from  the  Latin  terra,  "  land,"  for  which 
the  authority  of  Cujas  and  Barbeyrac  may  be  cited,  but 
which  seems  impossible  under  any  recognized  rules  of 
the  Latin  language.  This  meaning,  however,  seems 
never  to  have  been  given  to  it  to  any  considerable  extent. 
The  word  "territories"  was  used  over  and  over  again  in 
many  American  public  acts  and  proceedings  where  it 
necessarily  meant  an  organized  settled  region  dependent 
upon  an  American  Province. 

The  "Lower  Counties"  of  Pennsylvania,  so-called, 
(which  afterwards  became  the  State  of  Delaware),  ceded 
by  James,  Duke  of  York,  to  William  Penn,  a  few  months 
after  the  Charter  of  Pennsylvania  was  granted  to  him, 
which  were  given  a  separate  Assembly  but  were  put 
under  the  charge  of  the  Governor  and  Council  of  Penn- 


Imperial  Nomenclature,  1 625-1 750    107 

sylvania,  with  a  representation  in  the  Council,  were  uni- 
formly spoken  of,  until  they  obtained  statehood  under 
the  Governor  of  Pennsylvania,  as  the  "  territories  be- 
longing to "  Pennsylvania.  The  invariable  expression 
throughout  the  public  acts  of  the  period  was  "  The  Pro- 
vince of  Pennsylvania  and  the  territories  thereunto  be- 
longing." 

From  the  year  1686  until  the  American  Revolution, 
the  Governor  of  New  York  was  commissioned  as  "  Gov- 
ernor in  and  over  the  Province  of  New  York  and  the 
territories  depending  thereon,  in  America,"  and  the  same 
practice  prevailed  in  New  Jersey  from  1738  until  the 
Revolution. 

As  there  were  both  settled  and  unsettled  regions  de- 
pending upon  the  Provinces  of  New  York  and  New  Jersey, 
and  as  the  regions  depending  upon  Pennsylvania  were 
settled,  it  appears  that  the  word  "  territories"  had  no 
reference  to  unsettled  or  vacant  or  common  land,  but 
rather  to  any  region  which  was  adjacent  and  appurtenant 
to  a  province  and  immediately  dependent  upon  it  for  its 
government.  The  original  meaning  of  "  territory  "  given 
by  Varro  seems  to  have  been  adopted  in  the  English  and 
American  public  law,  except  that  that  which  he  called 
"  common  to  the  colonists  or  farmers  "  was  regarded  as 
subject  to  the  "  town  "  or  province,  and  dependent  upon 
it  for  its  government — a  characteristic  which  such  com- 
mon land  as  Varro  described  must  necessarily  have 
possessed. 

In  the  Charter  of  Massachusetts  Bay  of  1691,  the  alter- 
native designation  "Territory"  is  used  with  the  word 

Province,"  the  expression  used  throughout  the  Charter 
being  "  Province  or  Territory."  The  same  is  true  of  the 
supplementary  Charter  of  Carolina  of  1665.  It  is  notice- 
able that  in  both  cases  the  Charter  annexed  a  region  of 
country  to  a  previous  grant,  and  brought  the  whole  under 
one   provincial  government.     Thus,   in  the   Charter  of 


io8  The  Administration  of  Dependencies 

Massachusetts  Bay,  "the  Territories  and  Colonies  com- 
monly called  or  known  by  the  names  of  the  Colony  of 
Massachusetts  Bay  and  Colony  of  New  Plymouth,  the 
Province  of  Maine,  the  Territory  called  Acadia  or  Nova 
Scotia  and  all  that  tract  of  land  lying  between  the  said  Ter- 
ritory of  Nova  Scotia  and  the  said  Province  of  Maine  "  were 
erected,  united,  and  incorporated  into  a  "  Province  or  Terri- 
tory." In  the  Charter  of  Carolina  of  1665,  the  unsettled 
region  between  the  twenty-ninth  and  thirty-first  degrees 
of  north  latitude  (now  a  part  of  Florida)  was  annexed  to 
the  Province  of  Carolina.  There  was  nothing  in  either 
Charter  which  gave  authority  to  the  Provincial  Govern- 
ment to  treat  the  annexed  region  as  a  dependency  of  the 
Province.  It  has  already  been  noticed  that  when  New 
England  and  New  York  were  brought  under  one  govern- 
ment in  1686  by  commission  to  Andros  as  Governor-Gen- 
eral, the  alternative  designation  "Territory"  was  used 
with  the  title  "  Dominion."  The  conclusion  seems 
necessary  that  the  Crown  lawyers  doubted  the  power  of 
the  Crown,  independent  of  Act  of  Parliament,  to  annex 
part  of  the  Crown  lands,  or  a  province,  to  a  province  or 
to  a  colony  formed  under  a  guild  charter,  so  as  to  create 
the  whole  into  a  single  province;  and  that  the  words  "  or 
territory  "  were  added  in  such  cases,  out  of  precaution,  so 
that,  in  case  it  should  be  decided  that  the  Crown  had  not 
the  power  of  annexation  or  consolidation  as  respects  the 
dependencies,  the  whole  region  would  remain  under  the 
power  of  the  Crown  as  a  part  of  the  "  territory  (or  terri- 
tories) belonging  to  England."  This  is  the  more  prob- 
able, since  it  was  settled  that  the  King  could  not  revoke  a 
Charter,  but  that  it  could  only  be  annulled  for  cause  after 
a  judicial  determination  in  a  high  court  of  the  Realm. 

Still  another  word  which  was  beginning  to  come  into 
use  in  the  British  and  American  public  law  of  1750  to 
express  the  idea  of  a  political  community  in  relationship 
with  an  Imperial  State  was  the  word  "  dependency." 


Imperial  Nomenclature,  1625- 1750    109 

It  will  have  been  noticed  that  the  expression  "  terri- 
tories thereunto  belonging"  and  "territories  thereon 
depending"  were  used  with  the  same  meaning.  Other 
examples  of  this  are  found  in  the  Acts  of  the  Parliament 
of  the  Commonwealth.  The  "  dominions  and  territories 
belonging  to  England"  mentioned  in  the  Acts  of  1649 
abolishing  the  office  of  King  and  declaring  the  Common- 
wealth, were  spoken  of  in  the  Act  of  165 1,  authorizing 
the  sending  of  Parliamentary  troops  and  vessels  to  quell 
the  revolt  in  Virginia,  as  "  dependent  upon  England." 
In  the  last-mentioned  Act,  it  was  declared  that  all  the 
Colonies  and  Plantations  in  America  "  are  and  ought  to  be 
subordinate  and  dependent  upon  England,  and  hath  ever 
since  the  planting  thereof  been,  and  ought  to  be,  subject 
to  such  laws,  orders  or  regulations  as  are  or  shall  be  made 
by  the  Parliament  of  England."  The  expression  "  de- 
pendent upon  "  and  the  word  "  dependency  "  were  con- 
tinuously, from  the  time  of  the  Commonwealth,  in  use 
in  the  English  public  law.  There  is  contained  in  the 
expression  "  dependent  upon"  an  idea  of  protection  and 
support  which  is  absent  from  the  expression  "  belonging 
to."  The  Century  Dictionary  gives  as  the  first  meaning 
of  dependence  "  the  relation  of  a  hanging  thing  to  the 
support  from  which  it  hangs  " ;  and  as  one  of  its  derived 
meanings:  "  The  state  of  deriving  existence,  support,  or 
direction  from  another;  the  state  of  being  subject  to  the 
power  and  operation  of  some  extraneous  force ;  subjec- 
tion or  subordination  to  another  or  to  something  else." 
There  is  thus  contained  in  the  word  "dependence"  a 
meaning  of  mutual  obligation.  Nothing  hangs  from 
anything  else  unless  by  mutual  attraction,  or  some  other 
form  of  mutual  binding  or  obligation,  and  hence  "  de- 
pendence "  has  the  meaning  of  "  reliance,  confidence,  or 
trust;  or  a  resting  on  something,"  and  a  relationship  of 
dependency  is  a  relationship  of  trust  and  confidence  by 
the  person  who  depends  on  the  other  person.     If  it  be 


no  The  Administration  of  Dependencies 

granted  that  a  State  is  a  moral  person  and  that  any  politi- 
cal community  external  to  a  State  and  related  to  it  is 
likewise  a  moral  person,  so  that  a  State  is  regarded  as 
capable  of  undertaking  and  fulfilling  a  trust  and  confi- 
dence towards  a  political  community  under  its  control, 
the  word  "dependency  "  is  properly  the  generic  name  by 
which  to  describe  a  political  community  external  to  a 
State  and  subject  to  its  superintendence  and  control. 
The  Oxford  Dictionary  admits  this  generic  sense  of  the 
word  when  it  defines  a  dependency  as  "a  country  or 
province  subject  to  the  control  of  another  country  of 
which  it  does  not  form  an  integral  part."  These  propo- 
sitions had  not,  however,  received  general  acceptance  in 
1750,  and  the  expression  "dependent  upon"  a  State,  by 
which  the  political  community  so  characterized  was  recog- 
nized as  an  actual  or  inchoate  State,  was  used  inter- 
changeably with  the  expression  "belonging  to"  a  State, 
which  contained  no  express  recognition  of  the  statehood 
of  the  community,  but  simply  declared  its  externality  to 
the  State  to  the  control  of  which  it  was  subject. 

The  fact  that  the  expression  "territories  belonging  to" 
a  State  was  used  in  the  sense  of  "territories  dependent 
upon  "  the  State  is  of  peculiar  interest  because  it  seems 
to  determine  the  meaning  of  the  words  "  territory  or 
other  property  belonging  to  the  United  States,"  in  the 
clause  of  the  Constitution  relating  to  the  administration 
of  dependencies,  and  require  that  they  be  construed  as 
meaning  "  territory  or  other  property  dependent  upon 
the  United  States." 


CHAPTER   VII 

THE  AMERICAN  CONSTITUTION   OF    1750 

DURING  the  period  from  1606  to  1750,  there  was 
going  on  a  continual  process  of  unification  of  the 
British  Colonies  in  America.  Though  their  popu- 
lations were  separated  by  local  interests  and  jealousies, 
they  were  all  of  one  race,  and,  whatever  the  beginnings 
of  their  political  organization,  they  all  tended  toward  a 
single  form — that  of  a  province,  which  was  recognized  as 
a  political  organism  distinct  from  the  Realm  of  England 
or  the  Realm  of  Great  Britain,  and  as  entitled  to  the 
largest  degree  of  statehood  consistent  with  the  welfare 
of  the  whole  Empire. 

Thomas  Pownall,  who  was  Governor  of  Massachusetts 
in  1757  and  of  New  Jersey  in  1759,  in  the  fourth  edition 
of  his  book  The  Administration  of  the  Colonies,  pub- 
lished in  1768,  gives  an  ingenious  and  plausible  reason 
for  James  I.  having  admitted  the  Virginians  to  a  share 
in  their  own  government.     He  says: 

It  was  a  most  fortunate  thing  for  the  American  Colonies 
that  the  Island  of  Jersey  had,  by  its  constitution,  a  right  to 
hold  a  convention  or  meeting  of  the  three  orders  or  estates 
of  the  island,  in  imitation  of  those  august  assemblies,  known 
by  that  or  some  other  name,in  great  kingdoms  and  monarchies, 
a  shadow  and  resemblance  of  an  English  Parliament,  in  which 
the  King's  Governor,  or  Lieutenant,  had  a  negative  voice;  the 
great  business  of  which  meetings  was  the  raising  money  to 
supply  public  occasions.  "  For  "  (Mr.  Falle  says),  "  as  in  Eng- 
land money  cannot  be  raised  upon  the  subject  but  by  authority 

III 


112  The  Administration  of  Dependencies 

of  Parliament,  so  here  it  is  a  received  maxim  that  no  levies 
can  be  made  upon  the  inhabitants  but  by  their  own  consent,  de- 
clared by  their  representatives  assembled  in  Common  Coun- 
cil." It  was  fortunate,  I  say,  for  our  Colonies,  that  this  was 
the  case  of  Jersey;  for  there  can  be  no  other  reasonable  ac- 
count given,  how  our  Colonies  preserved  this  essential  right  of 
Englishmen,  but  that  it  happened  to  be  also  a  constitutional 
right  of  his  Majesty's  foreign  French-Norman  subjects. 

But  whether  England  conceded  to  the  dependencies 
political  personality  to  the  greatest  extent  possible  be- 
cause it  found  that  they  could  not  be  administered  ex- 
cept on  this  basis,  or  because  the  French-Norman  subjects 
of  the  King  in  the  Island  of  Jersey  had  previously  ob- 
tained it  by  constitutional  settlement,  or  because  the 
English  sentiment  for  political  liberty  responded  to  and 
helped  on  the  desire  of  the  colonists  for  political  per- 
sonality for  their  communities,  is  immaterial  for  the 
present  purposes.  That  the  right  of  the  people  in  the 
subordinate  parts  of  the  English  and  British  Empire  to 
participate  in  their  own  local  government  existed  from 
the  year  162 1,  as  a  principle  of  the  Constitution  of  the 
Empire,  is  beyond  doubt.  The  Imperial  Constitution 
was  the  aggregate  of  the  dispositions  made  by  England 
and  Great  Britain  concerning  the  extent  to  which  state- 
hood ought  justly  to  be  conceded  by  it  to  the  respective 
dependencies  in  the  interests  of  the  whole  Empire  com- 
posed of  England,  as  the  Imperial  State,  and  its  depen- 
dencies. The  adjustments  and  readjustments  necessary 
to  preserve  a  just  balance  between  the  interests  of  the 
metropole  and  the  dependencies,  which  the  French  called 
the  "  colonial  pact,"  required  the  exercise  of  expert  and 
diplomatic  powers.  The  problem  for  England  was  vastly 
complicated  by  the  fact  that  the  case  was  really  that  of 
the  population  of  one  political  community  treating  with 
the  population  of  another,  and  not,  as  in  France,  the 
King  treating  with  the  influential  persons  in  each  Colony. 


The  American  Constitution  of  1750    113 

Upon  the  King,  therefore,  as  a  part  of  his  diplomatic 
functions,  the  duty  was  cast  of  determining,  under  the 
advice  of  experts,  what  ought  justly  to  be  the  extent  of 
the  participation  of  the  people  of  the  dependencies  in  the 
government  of  them,  as  Stales,  and  of  establishing  those 
determinations  by  means  of  constitutional  settlements 
made  by  Proclamations  or  Charters. 

But,  although  there  was  a  general  recognition  of  the 
King's  functions  in  this  respect,  there  was  at  no  time 
prior  to  1750  any  thought  of  denying  to  Parliament 
a  visitorial  and  superintending  power  superior  to  that 
of  the  King.  Even  in  1630,  Charles  I.  issued  a  Patent 
to  a  guild  for  the  colonization  of  the  Providence  Islands 
in  the  West  Indies  with  a  proviso  that  it  should  not 
take  effect  as  a  Charter  until  confirmed  by  Parliament, 
and  the  granting,  confirmation,  or  amendment  by  Parlia- 
ment of  Charters  of  colonizing  guilds  was  not  uncommon. 
In  1698  a  Charter  was  granted,  by  Act  of  Parliament,  to 
the  English  Company  Trading  to  the  East  Indies,  as  a 
joint-stock  company,  which  was,  by  Acts  of  Parliament 
of  1707  and  171 1,  consolidated  with  the  original  East 
India  Company,  the  Charter  of  which  was  granted  by 
Queen  Elizabeth  in  1600,  and  renewed  in  1658  by  Crom- 
well, and  in  1662  by  Charles  II.  By  the  operations  of 
this  United  Company,  the  foundation  of  the  British 
Empire  in  India  was  laid. 

The  Colonies,  from  the  outset,  claimed  that  the  power 
of  Parliament,  when  sitting  as  the  Parliament  of  the 
Empire,  was  different  from  its  power  when  sitting  as  the 
Parliament  of  the  Realm. 

In  1646,  when  Dr.  Child  and  others  petitioned  the 
Commissioners  of  the  Lords  and  Commons  for  Foreign 
Plantations  for  a  regulation  permitting  religious  freedom 
in  Massachusetts  Bay,  claiming  that  the  Colony  was  only 
a  guild  and  hence  was  subject  to  Parliament  like  all  the 
corporations  of   the    Realm,   the  General  Court  of  the 


114  The  Administration  of  Dependencies 

Colony  thus  stated  its  views  of  the  power  of  Parliament 
in  the  Empire: 

1.  That  there  is  a  difference  between  subjection  to  the  laws 
in  general,  as  all  that  dwell  in  England  are,  and  subjection  to 
some  laws  of  State,  proper  to  foreign  plantations; 

2.  That  we  must  distinguish  between  corporations  within 
England  and  corporations  of,  but  not  within,  England;  the 
first  are  subject  to  the  laws  of  England,  yet  not  to  every  gen- 
eral law,  as  the  City  of  London  and  other  corporations  have 
divers  customs  and  by-laws  differing  from  the  common  and 
statute  laws  of  England.  Again,  though  plantations  be  bodies 
corporate  (and  so  is  every  city  and  commonwealth),  yet  they 
are  also  above  the  rank  of  an  ordinary  corporation. 

In  the  Act  of  Parliament  of  1649,  declaring  the  estab- 
ishment  of  the  Commonwealth,  the  power  of  Parliament 
was  declared  in  language  which  did  not  differentiate  its 
powers  when  sitting  as  the  Parliament  of  the  Realm  from 
its  powers  when  sitting  as  the  Parliament  of  the  Empire. 
The  Act  read ; 

Be  it  declared  and  enacted  by  this  present  Parliament,  and 
by  the  authority  of  the  same,  that  the  people  of  England,  and 
of  all  the  dominions  and  territories  thereunto  belonging,  are  and 
shall  be,  and  are  hereby  constituted,  made,  established,  and 
confirmed,  to  be  a  Commonwealth  and  Free  State,  and  shall 
from  henceforth  be  governed  as  a  Commonwealth  and  Free 
State  by  the  supreme  authority  of  this  nation,  the  representa- 
tives of  the  people  in  Parliament,  and  by  such  as  they  shall 
appoint  and  constitute  as  officers  and  ministers  under  them  for 
the  good  of  the  people,  and  that  without  any  King  or  House 
of  Lords. 

Virginia,  however,  after  its  revolt  from  the  authority 
of  the  Commonwealth,  procured  its  constitutional  rela- 
tionship to  England, — and  incidentally  the  constitutional 
relationship  of  all  the  Colonies, — to  be  thus  expressed 
in  the  Articles  of  Surrender  of  March  12,  165 1 : 


The  American  Constitution  of  1750    115 

First:  It  is  agreed  that  the  Plantation  of  Virginia,  and  all 
the  inhabitants  thereof,  shall  be  and  remain  in  due  obedience 
and  subjection  to  the  Commonwealth  of  England,  according 
to  the  laws  there  established,  and  that  this  submission  and 
subscription  be  acknowledged  a  voluntary  act  not  forced  nor 
constrained  by  a  conquest  upon  the  country,  and  that  they 
shall  have  and  enjoy  such  freedoms  and  privileges  as  belong 
to  the  free  born  people  of  England. 

Second:  That  the  Grand  Assembly  as  formerly  shall  con- 
vene and  transact  the  affairs  of  Virginia,  wherein  nothing  is 
to  be  acted  or  done  contrary  to  the  government  of  the  Com- 
monwealth of  England  and  the  laws  there  established. 

Seventh:  That  the  people  of  Virginia  shall  have  free  trade 
as  the  people  of  England  do  enjoy  to  all  places  and  with  all 
nations  according  to  the  laws  of  that  Commonwealth;  and  that 
Virginia  shall  enjoy  all  privileges  equal  with  any  English  Plan- 
tations in  America. 

Eighth:  That  Virginia  shall  be  free  from  all  taxes,  customs 
and  impositions  whatsoever,  and  none  to  be  imposed  on  them 
without  consent  of  the  Grand  Assembly,  and  so  that  neither 
forts  nor  castles  be  erected  or  garrisons  maintained  without 
their  consent. 

This  constitutional  settlement,  by  which  it  was  agreed 
that  Virginia  was  in  a  relationship  of  *'  due  obedience  and 
subjection  "  to  the  State  of  England  (that  is,  in  a  rela- 
tionship of  such  obedience  and  subjection  as  was  due  and 
proper  on  just  principles  of  free  Imperial  government) 
necessarily  implied  that  Parliament  had  only  the  powers 
which  the  State  of  England  could  exercise  by  virtue  of 
this  constitutional  settlement. 

The  language  used  in  the  English  statutes  shows  that 
from  the  time  of  the  accession  of  William  III.,  at  least, 
the  King  was  regarded  as  the  King  of  the  dominions  and 
territories  because  England  was  the  Imperial  State  on 
which  these  dominions  and  territories  were  dependent 


ii6  The  Administration  of  Dependencies 

and  of  which  he  was  the  representative,  under  the  con- 
trol and  supervision  of  Parliament,  for  the  performance 
of  those  duties  requiring  expert  and  diplomatic  knowl- 
edge and  action. 

In  the  Coronation  Oath  established  by  the  Act  of  1688, 
the  King  was  obliged  to  make  oath 

To  govern  the  people  of  this  Kingdom  of  England  and  the 
dominions  thereunto  belonging,  according  to  the  statutes  in 
Parliament  agreed  on,  and  the  laws  and  customs  of  the  same. 

In  the  Oath  of  Allegiance  established  by  Act  of  1707, 
the  person  taking  the  oath  was  obliged  to  swear : 

That  our  Sovereign  ,  is  lawful  and  rightful  King 

(or  Queen)  of  this  Realm,  and  of  all  other  his  (or  her)  Majesty's 
dominions  and  countries  thereunto  belonging. 

This  last  expression  is  noticeable  as  showing  that 
though  the  dependencies  were  then  regarded  as  "  be- 
longing to"  Great  Britain,  they  were  also  regarded  as 
"his  Majesty's"  dominions — that  is,  they  were  regarded 
as  dependencies  of  the  State  of  Great  Britain,  in  the 
immediate  charge  of  the  King. 

In  the  Navigation  Act  of  1696  (For  Regulating  Frauds 
and  Preventing  Abuses  in  the  Plantation  Trade)  Parlia- 
ment took  occasion  to  declare  its  power  over  all  the  de- 
pendencies in  Asia,  Africa,  and  America  by  enacting  that 

All  laws,  by-laws,  usages  or  customs  at  this  time  or  which 
shall  hereafter  be  in  practice  or  endeavored  or  pretended  to 
be  in  force  or  practice  in  any  of  the  said  Plantations  which 
are  in  anywise  repugnant  to  .  .  .  this  present  Act  or  to 
any  other  law  hereafter  to  be  made  in  this  Kingdom,  so  far  as 
such  la7v  shall  relate  to  and  mention  the  said  Plantations,  are 
illegal,  null  and  void  to  all  intents  and  purposes  whatsoever. 

This  was  an  admission  that  the  dependencies  were  en- 
titled to  a  special  regime  distinct  from  that  of  the  Realm, 


The  American  Constitution  of  1 750    1 1 7 

accompanied  by  a  claim  that  Parliament  might  determine 
the  character  of  the  regime  in  each  particular  instance. 

The  statehood  of  the  Colonies  was  evidenced  and  de- 
clared by  the  manner  and  form  of  their  political  and  cor- 
porate action.    Their  Local  Governments  "enacted"  their 

laws."  In  the  Colonies,  the  General  Court  or  the  General 
Assembly  enacted  the  laws;  in  the  Provinces,  the  Gover- 
nor or  the  Lord  Proprietor,  by  the  authority  of  the  Gen- 
eral Assembly,  enacted  them.  There  were  occasional  and 
temporary  forms  of  enactment  used  which,  if  continued, 
might  have  given  ground  for  claiming  that  the  King  was 
a  part  of  the  Provincial  Government.  Thus,  in  Mary- 
land, from  1654  to  1658,  the  form  of  the  enacting  clause 
was:  "It  is  enacted  in  the  name  of  his  Highness  the 
Lord  Protector,  with  the  consent  and  by  the  authority  of 
this  present  General  Assembly."  This  form  of  enact- 
ment, which  might  have  contained  an  admission  that 
Maryland  was  a  commonwealth  co-ordinate  with  Eng- 
land and  not  a  province  belonging  to  and  dependent 
upon  England,  was  stopped  in  1658  when  Lord  Baltimore 
was  restored  as  Lord  Proprietor,  and  the  old  form,  "  Be 
it  enacted  by  the  Lord  Proprietary  by  and  with  the  con- 
sent of  the  Upper  and  Lower  House  of  the  General  As- 
sembly," was  again  used  until  the  Revolution. 

In  1682,  immediately  after  Bacon's  Rebellion,  the  form 
of  enactment  in  Virginia  was:  "Be  it  enacted  by  the 
King's  most  excellent  Majesty,  by  and  with  the  consent 
of  the  General  Assembly."  This  was  stopped  after  two 
years  and  in  1682  the  form  was  adopted  which  was  not 
changed  until  the  American  Revolution  :  "  Be  it  enacted 
by  the  Governor,  Council  and  Burgesses  of  the  General 
Assembly  and  it  is  enacted  by  the  authority  aforesaid." 

After  Lord  Baltimore  was  deprived  of  his  proprietor- 
ship of  Maryland  in  1692,  the  form  of  the  enacting  clause 
was:  "Be  it  enacted  by  the  King's  most  excellent  Ma- 
jesty, by  and  with  the  advice  and  consent  of  this  present 


ii8  The  Administration  of  Dependencies 

General  Assembly,  and  the  authority  of  the  same. "  This 
continued  until  1716,  when  the  proprietorship  was  re- 
stored to  the  heirs  of  Lord  Baltimore.  Thenceforth  the 
form  of  the  enacting  clause  was:  "  Be  it  enacted  by  the 
right  honorable  the  Lord  Proprietary,  by  and  with  the  ad- 
vice and  consent  of  his  Governor  and  the  Upper  and 
Lower  Houses  of  Assembly  and  the  authority  of  the 
same." 

These  temporary  exceptions,  however,  only  serve  to 
prove  that  it  was  the  theory  of  the  public  law  that  the 
public  acts  in  the  American  Colonies  were  to  be  enacted 
in  the  name  of  the  Local  Government,  and  not  in  the 
name  of  the  King  or  of  the  Home  Government.  The 
practically  universal  form  of  the  enacting  clause,  by 
which  the  Governor  of  the  Province  enacted  "  by  and 
with  the  advice  and  consent  of  the  Upper  and  Lower 
House  of  the  General  Assembly  and  by  the  authority  of 
the  same,"  shows  that,  in  the  public  law  of  the  British 
Empire,  the  Colonies  were  recognized  as  having  state- 
hood, and  the  State  of  Great  Britain,  as  having  a  visi- 
torial  and  superintending  power  over  them. 

It  was  thus  established  as  the  fundamental  principle  of 
the  Constitution  of  the  British  Empire  for  the  Ameri- 
can Colonies  that  they  were  political  persons, —  that  is, 
States,  in  the  generic  sense  of  that  word, — subject,  under 
constitutional  conditions  and  limitations,  to  the  State  of 
Great  Britain  as  the  Imperial  State  or  metropole  of  the 
Empire ;  that  the  King  was  the  representative  of  Great 
Britain  as  the  Imperial  State,  and  that  Parliament  was  also 
its  representative,  superior  to  the  King.  As  between  the 
Imperial  State  and  the  dependencies,  the  functions  of 
the  Imperial  State  were  to  determine  the  constitutions  of 
the  dependencies  and  to  legislate  for  the  Imperial  de- 
fence and  welfare ;  the  function  of  the  dependencies  was  to 
legislate  for  their  local  interests.  Whatever  the  King  con- 
sented to  as  a  proper  function  of  the  Local  Governments, 


The  American  Constitution  of  1750    119 

the  Colonies  naturally  considered  to  be  a  concession  made 
by  the  Imperial  State,  and  to  be  a  part  of  the  Imperial 
Constitution.  Theoretically,  perhaps,  such  concessions 
were  regarded  as  in  suspense  for  a  time,  so  that  if  Parlia- 
ment objected,  the  concessions  would  fail,  but  no  oppor- 
tunity ever  arose  to  put  such  a  theory  in  force,  because 
Parliament  left  substantially  the  whole  administration  of 
the  Colonies,  except  with  regard  to  their  foreign  trade, 
to  the  King  in  Council. 

Some  of  these  concessions  had  come  without  any 
effort.  The  American  Colonies  had  never  been  troubled 
by  any  attempts  of  English  trading  companies  to 
monopolize  their  trade,  but  all  chance  of  this  was  cut 
off  by  the  declaration  by  the  House  of  Commons  by 
resolution  in  1692,  against  the  power  of  the  King  to 
create  monopolies  by  charter  for  trading  in  the  depen- 
dencies. Thenceforward  all  monopolies  had  to  be  cre- 
ated by  Act  of  Parliament,  and  Parliament  granted  none 
in  America. 

The  concession  by  the  King  in  Council  in  1735  that 
the  Colonies  should  have  the  right  of  taxation,  however, 
came  as  the  result  of  a  long  struggle. 

The  Navigation  Act  first  enacted  by  the  Parliament 
of  the  Commonwealth  in  165 1,  which  gave  England  and 
English  ships  the  monopoly  of  the  trade  with  the  Amer- 
ican Colonies,  was  re-enacted  under  Charles  II.  in  1663, 
and  a  more  elaborate  statute  covering  the  same  ground 
was  enacted  under  William  III.,  which  carried  out  the 
principles  of  the  "  colonial  pact  "  and  the  "  mercantile 
system"  to  the  full.  These  Acts,  of  course,  made  it 
impossible  for  the  King  to  make  any  concessions  in  this 
direction.  Parliament  had  covered  the  ground  with  re- 
spect to  the  regulation  of  the  external  trade  of  the 
Colonies,  and  so  long  as  these  statutes  existed,  he  could 
make  no  regulation  inconsistent  with  them.  The  Colo- 
nies strenuously  objected  to  the  Navigation  Acts  until 


120  The  Administration  of  Dependencies 

the  time  of  William  III.  Thenceforward  they  acquiesced 
in  them,  apparently  being  convinced,  as  the  result  of  the 
very  careful  consideration  which  all  constitutional  ques- 
tions received  in  England  upon  the  accession  of  William 
III.,  that  the  mercantile  system  involved  no  violation  of 
their  constitutional  rights,  and  that  the  levying  of  im- 
posts for  the  purposes  of  the  trade  and  navigation 
of  the  Empire  was  a  different  thing  from  the  levying 
of  taxes  for  the  ordinary  purposes  of  defence  and 
welfare. 

Though  the  question  of  the  right  of  England,  as  the 
Imperial  State,  to  levy  taxes  in  the  Colonies  was  raised 
in  the  earliest  times,  the  first  general  agitation  of  the 
question  throughout  the  Colonies  was  initiated  by  the 
Province  of  Massachusetts  Bay  in  1692,  which  refused, 
under  claim  of  authority  given  in  its  charter  to  levy 
taxes  and  direct  the  appropriation  of  the  proceeds,  to 
grant  a  permanent  salary  to  the  Governor.  It  claimed 
it  had  the  right  to  pay  him  what  it  chose,  by  an  an- 
nual grant.  The  English  Government  objected,  both  be- 
cause this  implied  the  exclusive  power  of  the  Colony  to 
legislate  by  way  of  local  taxation,  and  because  it  made 
the  Governor  dependent  on  the  favor  of  the  Legislature. 
Other  Colonies  followed  the  example  of  Massachusetts 
Bay,  and  by  1725  the  practice  of  paying  the  royal  Gov- 
ernors such  sums  as  the  General  Assemblies  (that  is,  the 
Houses  of  Representatives)  saw  fit,  had  become  common. 
The  House  of  Commons,  on  petition  from  the  Legisla- 
ture  of  Massachusetts  Bay  in  1732  requesting  that  they 
consent  to  this  arrangement,  refused  in  a  brusque  reso- 
lution which  declared  the  request  to  be  "frivolous  "  ;  but 
nevertheless  the  King  in  Council  yielded  the  point  in 
1735,  and  no  further  attempt  was  made  to  tax  the  Colo- 
nies or  to  dictate  to  them  how  they  should  tax  themselves 
for  nearly  thirty  years,  they  deciding,  on  requisition  made 
by  the  King  in  Council,  the  amount,  manner,  and  time 


The  American  Constitution  of  1750    121 

of  payment,  and  enacting  the  law  providing  for  the  neces- 
sary taxation. 

Other  rights  which  the  Colonies  claimed  were  adjusted 
by  a  compromise  or  left  unsettled  as  being  so  close  to  the 
border-line  as  to  require  adjudication  in  each  case  as  it 
arose. 

The  Colonies  had  during  all  this  period  objected  to  all 
interference  of  the  English  and  British  Government  in 
affairs  that  they  regarded  as  properly  of  local  importance 
and  interest.  When  the  Post  Office  establishment  was 
extended  to  the  Colonies  in  1707,  they  almost  uniformly 
took  upon  themselves  to  regulate  the  manner  in  which 
the  post-riders  and  postmasters  should  conduct  them- 
selves. When  the  British  Government  tried  to  enforce 
the  Act  of  Parliament  of  17 10,  which  made  it  a  penalty 
to  cut  or  injure  pine  trees  suitable  for  ships*  masts  grow- 
ing on  land  not  appropriated  to  private  ownership,  they 
made  prosecution*  and  punishment  so  difficult  that  the 
law  became  a  dead  letter.  When  the  British  Govern- 
ment tried,  in  1741,  to  stop  the  issue  of  bills  of  credit  by 
the  Colonies,  by  compelling  Massachusetts  Bay  to  tax  it- 
self to  pay  off  all  its  bills  then  outstanding,  the  situation 
was  made  so  difficult  that  the  British  Government  al- 
lowed the  matter  to  drop. 

That  the  individual  in  the  American  Colonies  had  all 
the  rights,  privileges,  and  immunities  as  against  the  Gov- 
ernment that  every  inhabitant  of  England  or  Great  Britain 
had,  was  undoubted.  The  right  was  secured  by  every 
Colonial  Charter,  and  the  Charters  were  regarded  as 
merely  declaratory  of  the  existing  law. 

The  British  Imperial  Constitution  for  the  American 
Colonies  and  Provinces,  as  it  existed  in  1750,  may, 
therefore,  thus  be  summarized  : 

1st.  Concerning  the  political  relationship  between 
Great  Britain  and  the  Colonies: 

It  was  adjudged  and  declared  by  Great  Britain  and 


122  The  Administration  of  Dependencies 

assented  to  by  the  Colonies  that  they  were  dependent  on 
Great  Britain,  and  that  Great  Britain,  as  the  Imperial  or 
Sovereign  State,  and  the  Colonies,  as  dependencies,  or 
constitutionally  subject  States,  constituted  a  single  politi- 
cal organism  known  as  the  British  Empire;  that  Great 
Britain,  acting  through  the  King  in  Council  or  Parlia- 
ment, had  power  to  make  constitutions  for  or  constitu- 
tional settlements  with  the  Colonies,  respecting  their 
wishes  as  far  as  it  deemed  consistent  with  the  common 
interests.  In  the  infancy  of  the  Colonies  the  inhabitants 
were  little  consulted,  as  it  was  usually  impossible  for 
them,  owing  to  their  lack  of  homogeneity  and  the 
sparseness  of  their  settlements,  to  have  any  definite 
ideas  as  a  community  on  the  subject  of  their  government. 
As  the  Colonies  increased  in  compactness  of  organiza- 
tion, the  form  of  government  was  established  by  Charters 
or  Proclamations,  which  evidenced  the  constitutional 
settlements  made  from  time  to  time  between  the  King 
in  Council  and  the  Agents  or  General  Assemblies  of  the 
Colonies. 

2d.  Concerning  the  respective  spheres  of  jurisdiction 
of  the  Imperial  State  and  the  Colonies: 

It  was  adjudged  and  declared  by  Great  Britain  and 
assented  to  by  the  Colonies  that  Great  Britain,  through 
its  King,  represented  the  whole  Empire  in  the  matter  of 
making  war  and  peace,  and  in  all  dealings  with  foreign 
States;  and  that  Great  Britain,  through  the  King  in 
Council,  or  through  Parliament,  or  through  any  other 
governmental  agency  specially  appointed  for  the  purpose, 
had  power  to  administer  the  common  interests  of  the 
whole  Empire,  and  that  the  Colonies  had  the  exclusive 
power  to  administer  their  local  interests  in  those  respects 
in  which  they  did  not  conflict  with  the  interests  of  the 
Empire,  under  the  condition  that  their  local  adminis- 
tration should  conform  to  the  equity  of  the  laws  of  Great 
Britain  —  that  is,   should   not  be  repugnant  to  it,  but 


The  American  Constitution  of  1750    123 

should  be  consistent  with  it  as  nearly  as  the  local  circum- 
stances and  conditions  would  permit;  that  Great  Britain, 
through  the  King  in  Council,  or  through  Parliament,  had 
powers  of  administration  reasonably  incidental  to  the 
preservation  of  the  common  welfare,  even  though  such  ad- 
ministration extended  to  subjects  which  would  ordinarily 
be  within  the  sphere  of  jurisdiction  of  the  Colonies,  pro- 
vided that  such  dispositions  should  not  be  repugnant,  but 
agreeable,  as  nearly  as  might  be,  considering  the  circum- 
stances and  conditions  of  the  whole  Empire,  to  the  laws 
and  customs  prevailing  in  the  Colonies;  that,  for  the 
purpose  of  preventing  the  intrusion  of  the  Colonies  into 
the  sphere  of  jurisdiction  of  Great  Britain,  it  was  to  be 
represented  in  the  Colonies  by  a  royal  Governor  with 
power  of  veto-  and  sometimes  by  a  royal  Council,  and 
that  the  King  in  Council  should  also  have  the  power  to 
veto  Colonial  legislation;  and  that,  for  the  purpose  of 
preventing  intrusion  by  Great  Britain  into  the  sphere  of 
jurisdiction  of  the  Colonies,  the  petitions  of  their  Gen- 
eral Assemblies  were  to  be  considered  and  adjudicated 
upon  by  the  King  in  Council  and  by  Parliament,  and 
the  Agents  of  the  Colonies  were  to  be  heard  by  the 
Board  of  Trade  and  Plantations  and  the  Committee  of 
the  Privy  Council  for  Plantation  Affairs,  before  any 
action  affecting  the  local  interests  of  the  Colonies  became 
final. 

The  power  to  legislate  in  the  common  interests  in- 
cluded the  right  to  regulate  foreign  trade  and  the  trade 
with  the  Indians,  and  probably  also  the  right  to  regu- 
late intercolonial  trade  (though  this  latter  power  seems 
not  to  have  been  exercised  after  the  time  of  Charles  II. 
and  James  II.,  owing  to  the  prevalent  belief  in  England 
that  the  dependence  of  the  Colonies  on  England  could 
be  secured  only  by  keeping  them  divided  and  foster- 
ing their  jealousy  of  each  other) ;  to  coin  money  and 
regulate  its  value,  and  fix  the  standard  of  weights  and 


124  The  Administration  of  Dependencies 

measures;  to  establish  an  Imperial  postal  service;  to  con- 
stitute Imperial  and  Colonial  Courts,  unless  the  right  to 
establish  Colonial  Courts  were  granted  to  a  Colony  in  its 
Charter;  to  establish  a  Supreme  Court  of  Appeal  in  Eng- 
land for  the  Colonies  (the  Court  being  a  Judicial  Com- 
mittee of  the  Privy  Council,  which  was  evidently  regarded 
as  the  proper  body  to  hear  Colonial  causes,  since  such 
causes  had  to  be  decided  not  by  the  laws  of  England 
but  by  the  equity  of  those  laws);  to  define  and  punish 
piracies  and  felonies  on  the  high  seas  and  offences  against 
the  law  of  nations ;  to  declare  war,  grant  letters  of  marque 
and  reprisal,  and  make  rules  concerning  captures  on  land 
and  water;  to  provide  and  maintain  an  army,  navy,  and 
fortifications  for  the  Imperial  defence,  and  to  have  power 
over  the  militia  of  the  Colonies  when  raised  by  the  Colo- 
nies for  the  Imperial  defence;  to  regulate  the  mode  of 
proof  of  the  acts,  records,  and  proceedings  of  a  Colony, 
in  another  Colony ;  and  to  provide  for  the  extradition  of 
criminals  from  one  Colony  to  another. 

Among  the  matters  of  common  interest  concerning 
which  the  Colonies  could  act  when  authorized,  were  the 
entering  into  treaty,  alliance,  or  confederation  with  other 
Colonies;  granting  letters  of  marque  and  reprisal;  coin- 
ing money ;  emitting  bills  of  credit ;  or  making  anything 
other  than  gold  and  silver  coin  a  legal  tender  in  payment 
of  debts. 

The  right  to  tax  for  the  Imperial  defence  and  welfare 
had  never,  up  to  1750  (or  until  1764),  been  exercised  by 
Great  Britain.  Its  rights  in  this  respect  had,  up  to  that 
time,  been  confined  to  an  adjudication  by  the  King  in 
Council,  after  hearing  the  Agents  of  the  Colonies,  of  the 
amounts  of  money  or  the  numbers  of  troops  which  ought 
justly  to  be  supplied  by  each  Colony,  and  to  making 
requisitions  upon  the  respective  Colonies,  which  re- 
sponded through  action  taken  by  their  General  Assem- 
blies for  raising  the  money  or  troops. 


The  American  Constitution  of  1750    125 

3d.  Concerning  the  rights  of  individuals  in  the  Colo- 
nies against  the  Imperial  and  the  Colonial  Governments. 

It  was  adjudged  and  declared  by  Great  Britain  and 
assented  to  by  the  Colonies  that  neither  the  Imperial  nor 
the  Local  Governments  were  to  deprive  the  citizens  of 
the  Colonies  of  the  equal  protection  of  the  laws  (and 
hence  were  not  to  grant  any  monopoly  except  for  patents, 
copyrights,  etc.)  or  deprive  any  person  of  life,  liberty, 
or  property  without  due  process  of  law.  Due  process  of 
law,  as  against  the  Imperial  Government,  consisted  in 
the  Colonies  being  heard,  through  their  Agents,  acting 
both  as  diplomatic  representatives  and  as  attorneys  at 
law,  by  the  Board  of  Trade  and  Plantations  and  the 
Committee  of  the  Privy  Council  for  Plantation  Affairs, 
before  any  action  of  the  State  of  Great  Britain  depriving 
them,  or  any  of  their  inhabitants,  of  life,  liberty,  or 
property,  became  final. 

Under  this  Constitution,  Great  Britain  and  the  Colonies 
were  Member-States  of  a  Federal  Empire,  in  which  Great 
Britain  was  the  Imperial  State  and  Central  Government 
which  adjudicated  upon  the  limits  of  its  own  jurisdiction 
and  concerning  its  action  within  these  limits,  after  advis- 
ing with  the  Colonial  Agents,  who  acted  as  the  represen- 
tatives of  the  Colonies  at  the  Court  of  the  Imperial  State. 
The  usual  instrumentality  through  which  Great  Britain 
made  these  adjudications  or  dispositions  was  the  King, 
assisted  by  the  Committee  of  the  Privy  Council  for  Plan- 
tation Affairs  as  a  Secretarial  Board  or  Chancellery,  and 
by  the  Board  of  Trade  and  Plantations  as  an  under- 
Secretarial  Board  or  sub-Chancellery,  but  the  adjudica- 
tions of  the  King  were  reviewable  and  controllable  by 
the  Parliament,  composed  of  King,  Lords,  and  Commons, 
acting  in  conformity  with  the  conditions  and  trusts  which 
rested  upon  the  State. 

The  whole  political  organism  composed  of  Great  Britain 
and  the  '  Colonies   was   a    Federal    Empire,    and    not   a 


126  The  Administration  of  Dependencies 

Federal  State, because  the  Central  Government  was  a  State 
and  not  an  elected  body  of  men.  The  powers  of  Great 
Britain  as  the  Imperial  State  and  Central  Government  of 
the  Federal  Empire  were  essentially  conditional, —  the 
condition  being  that  it  should  adjudicate  the  limits  of  its 
own  jurisdiction,  and  act  only  within  the  limits  so  ad- 
judicated. It  occupied  a  position  of  trust  of  the  highest 
nature,  as  does  every  Imperial  State  in  its  Federal 
Empire. 

It  cannot  be  said  that  the  existence  of  the  Federal 
Empire  was  ever  admitted.  It  could  not  have  been, 
since  the  Federal  Empire  and  the  Federal  State  had  not 
yet  been  recognized  and  named.  ^Writers  on  the  general 
public  law  had  not  advanced  beyond  calling  such  political 
organisms  "Systems  of  States."  It  can  be  said,  however, 
that  the  Federal  Empire  existed  in  fact  and  that  the 
Constitution  above  described  was,  in  fact,  its  funda- 
mental law.  That  there  were  acts  of  the  English  and 
British  State  and  its  Government  during  this  period 
which  were  inconsistent  with  this  Constitution  is  unde- 
niable, but  they  were  few  in  comparison  with  the  great 
body  of  acts  which  were  explicable  only  on  the  theory 
of  the  existence  of  such  a  Constitution. 

The  Constitution  as  it  existed  in  1750  continued  in 
force  unchanged  until  the  close  of  the  French  War  in 
1763.  In  all  the  negotiations  between  the  Colonies  and 
Great  Britain  preceding  the  Revolution,  when  a  claim 
was  made  by  or  in  behalf  of  the  Colonies  that  they  be 
restored  to  their  constitutional  situation,  it  was  invari- 
ably the  situation  as  it  existed  at  the  close  of  the  war  in 
1763  that  was  intended.  In  speaking  of  the  harmony 
and  good  feeling  which  it  was  hoped  might  be  restored 
as  the  result  of  the  negotiations,  it  was  the  harmony  and 
good  feeling  which  existed  at  the  close  of  the  war  in  1763 
to  which  the  words  referred.  It  would  seem,  therefore, 
on  first  glance,  that  the  pre-Revolutionary  Constitution 


The  American  Constitution  of  1750    ^^7 

of  the  British  Empire  in  America  ought  to  be  called  the 
Constitution  of  1763,  and  not  the  Constitution  of  1750. 
Inasmuch,  however,  as  the  acts  on  both  sides  which  were 
regarded,  in  the  time  of  the  Revolution,  by  each  of  the 
contending  parties,  as  attempted  infractions  of  its  consti- 
tutional rights,  began  in  the  year  1750,  it  seems  more 
proper  to  describe  the  Constitution  as  of  the  last  year 
before  any  alleged  infractions  of  it  took  place. 

In  the  year  1750,  the  Constitution  of  the  British  Em- 
pire in  America  reached  its  greatest  efficiency.  During 
the  period  from  1735  to  1750,  the  relations  of  the  Colo- 
nies with  Great  Britain  were  better  than  they  had  been 
at  any  previous  time;  and,  though  seeds  of  discord  were 
sown  between  1750  and  1763,  yet  the  close  fellowship  and 
the  pursuit  of  a  common  end  during  the  war  with  France 
drew  tighter  the  bonds  of  friendship.  The  Colonies  were 
devoted  to  the  connection  with  Great  Britain, —  which 
was,  to  all  intents  and  purposes,  a  connection  with  Eng- 
land,— and  no  one  appears  to  have  dreamed  that  there 
was  anything  which  was  not  dignified,  just,  and  proper 
in  their  relationship  to  that  State. 


CHAPTER   VIII 

REALM    OR   EMPIRE,    I75O-I765 

AFTER  the  passage  of  the  Act  of  Settlement  of 
1689,  the  King,  as  a  part  of  the  Parliament,  con- 
sisting of  King,  Lords,  and  Commons,  was  still 
looked  up  to  by  the  people  as  the  leader  of  political 
thought  and  action.  It  was  equally  repugnant  to  the 
ideas  of  William  III.  and  of  the  people  that  the  power 
of  the  King  over  legislation  should  be  reduced  to  a  mere 
power  to  veto  bills  that  had  passed  both  Houses.  It  was 
agreed  by  all  parties  that  the  King  ought  not  only  to 
have  a  part  in  the  enactment  of  legislation,  both  consti- 
tutional and  ordinary,  but  that  he  ought,  as  the  expert 
part  of  the  Government,  to  have  the  power  of  initiation 
and  an  equal  voice  with  each  of  the  two  Houses  in  the 
framing  of  enactments.  In  the  actual  working  of  the 
system  establj^shed  by  the  Act  of  Settlement,  it  was 
necessary  to  the  maintenance  of  the  King's  leadership 
that  he  should  succeed  in  persuading  the  House  of  Com- 
mons to  adopt  any  new  measures  of  legislation  initiated  by 
him — the  House  of  Lords  acting  usually  with  the  King, 
but  also  checking  both  the  King  and  the  Commons. 
He  could  no  longer  ignore  the  Commons,  or  force  them 
to  act  as  a  mere  deliberative  and  registering  body. 

Legislation,  therefore,  had  to  be  a  matter  of  agree- 
ment between  the  three  parties, —  King,  Lords,  and 
Commons, —  and,  in  order  to  consummate  the  agree- 
ment, there  was  need  of  the  services  of  a  body  of  per- 
sons, skilled  in  government  and  in  party  politics,  whose 

128 


Realm  or  Empire,  1 750-1 765         129 

function  it  was  to  devise  measures  on  which  all  the 
three  parties  might  unite,  and  to  carry  the  measures 
through  to  agreement,  by  argument  and  persuasion. 
There  was  at  first  no  open  recognition  of  this  body,  and 
it  was  called  the  Cabinet  Council, — that  is,  the  inner 
and  confidential  Council  which  met  in  the  Cabinet,  or 
private  apartment  of  the  King,  to  devise  measures  of 
legislation  and  arrange  for  carrying  them  through  both 
Houses,  as  distinguished  from  the  Privy  Council,  which 
met  in  the  Council  Chamber,  and  deliberated  concerning 
the  purely  executive  acts  of  the  King.  The  members  of 
the  Cabinet  Council  were  called  the  King's  Ministers, — 
that  is,  the  King's  Servants.  Later  on,  when  it  was  real- 
ized that  this  body  was  an  absolutely  necessary  means 
to  consummate  the  necessary  agreements  concerning 
legislation  between  the  King,  Lords,  and  Commons,  it 
came  to  be  recognized  as  an  institution,  and  received 
the  abbreviated  name  of  "  The  Cabinet."  Though  the 
members  of  the  Cabinet  were  always  Privy  Councillors, 
the  functions  of  the  two  bodies  were  so  different — the 
Cabinet  being  organized  to  actually  take  part  in  and 
control  legislation,  while  the  Privy  Council  existed  only 
to  advise  the  King  in  his  purely  executive  acts — that 
the  two  bodies  were  entirely  distinct  and  separate  from 
one  another.  As  the  functions  of  the  Cabinet  were  ex- 
pert and  confidential  to  all  the  three  parties, — King, 
Lords,  and  Commons, — it  followed  that  unless  it  could 
devise  measures  on  which  an  agreement  could  be 
reached,  the  only  way  was  for  the  parties  to  discharge 
it  and  appoint  another.  If,  however,  one  of  the  parties 
could  dictate  when  it  should  be  discharged,  that  party, 
in  effect,  could  dictate  legislation. 

Shortly  prior  to  1750,  the  House  of  Commons  had 
claimed  that  it  had  the  right  to  discharge  the  Cabinet 
when  the  measures  advanced  by  it  did  not  meet  the  ap- 
proval of  a  majority  of  the  House,  and  the  Cabinet  had 


I30  The  Administration  of  Dependencies 

begun  the  practice  of  resigning  under  such  circumstances. 
It  was  thus  on  the  way  to  become  simply  the  consulta- 
tive Council  of  the  House  of  Commons,  to  prepare  meas- 
ures agreeable  to  that  House  and  to  carry  them  through 
with  the  King  and  the  House  of  Lords  by  persuasion  and 
argument.  As  things  stood  in  1750,  the  signs  of  the 
times  pointed  to  a  complete  revolution  of  exactly  this 
sort,  which,  when  accomplished,  would  substitute  for  gov- 
ernment by  King,  Lords,  and  Commons,  the  government 
of  the  House  of  Commons  in  Council,  checked  by  the 
King  and  the  House  of  Lords,  who  would,  however,  have 
little  more  than  deliberative  and  registering  functions. 

Up  to  the  time  of  the  death  of  George  H.,  in  1760, 
no  definite  trial  of  strength  had  occurred  between  the 
King  and  the  Commons.  George  HL,  however,  deter- 
mined to  bring  the  question  to  an  issue,  and  undertook 
to  oppose  the  threatened  attachment  of  the  Cabinet  to 
the  House  of  Commons  by  fair  means  or  foul,  and  to 
establish  a  government  by  King  in  Cabinet,  not  like  that 
of  the  King  in  Council  either  in  the  traditional  sense  or 
in  the  sense  of  the  Stuarts,  who  honestly  believed  that 
they  had  the  right  to  legislate  as  well  as  to  execute  the 
statute  and  the  unwritten  law,  but  by  rewarding  his  allies 
and  ostracizing  his  opponents.  No  doubt  he  and  the 
whole  Tory  party  were  alarmed  to  see  the  reins  of  gov- 
ernment slipping  out  of  the  hands  of  the  Crown,  as  the 
expert  part  of  the  English  and  British  Government,  and 
being  caught  up  by  the  House  of  Commons,  the  popular 
and  non-expert  part.  Perhaps  his  and  their  position 
may  best  be  described  as  one  which  they  considered  to 
be  necessitated  by  the  fact  that  the  House  of  Commons, 
in  claiming  the  right  to  discharge  the  Ministry  when  it 
disapproved  any  measure  proposed  by  them,  was  in  a 
state  of  revolution  against  the  Government,  that  there 
hence  existed  a  state  of  political  warfare  between  the 
King  and  that  House,  and  that  all  was  fair  in  war. 


Realm  or  Empire,  1 750-1 765         131 

If  the  Government  of  Great  Britain  was  to  be  a 
government  by  the  King,  it  logically  followed  that 
the  inhabitants  of  the  Realm  of  Great  Britain  and 
the  inhabitants  of  the  dependencies  must  constitute  a 
single  political  organism.  The  House  of  Commons  be- 
ing, in  the  estimation  of  George  III.,  a  mere  deliberative 
and  registering  body,  at  least  so  long  as  the  warfare  be- 
tween him  and  them  continued,  there  appeared  to  him 
to  be  no  reason  why  the  American  Colonies  should  not 
be  satisfied  with  the  theory  that  the  power  of  Parliament 
in  the  Colonies  was  unlimited  and  unconditional,  since 
Parliament,  in  his  view,  was  merely  himself,  assisted  by 
the  House  of  Lords  and  the  House  of  Commons,  as  de- 
liberative and  registering  bodies.  But,  if  the  Colonies 
were  not  satisfied,  the  exigencies  of  the  political  situa- 
tion at  home  were  such  that  he  could  not  pay  any  atten- 
tion to  their  complaints.  An  admission  by  him  that  the 
popular  Assemblies  of  the  Colonies  had  the  right  to 
control  their  Governments  would  have  been  an  admis- 
sion that  the  British  House  of  Commons  had  the  right 
to  control  the  British  Government.  It  was  a  logical 
necessity  for  the  King  and  the  Tory  party,  in  the  po- 
litical situation  then  existing  in  England,  in  case  the 
Colonial  Assemblies  claimed  any  other  power  than  that 
of  mere  registration  of  the  measures  instituted  by  the 
King  and  deliberated  and  registered  by  the  Lords  and 
Commons,  to  reduce  the  Colonies  to  subjection  by 
force. 

On  the  other  hand,  the  antagonism  between  the  King 
and  the  House  of  Commons  led  the  advocates  of  the 
claims  of  that  House  to  be  very  jealous  of  all  its  preroga- 
tives, so  that  many  of  the  members  who  were  opposed 
to  the  claims  of  the  King  vehemently  upheld  the  un- 
limited and  unconditional  power  of  Parliament  over  the 
American  Colonies.  Thus  the  Colonies  were  between 
two  contending  factions  in  the  British  Government,  both 


132  The  Administration  of  Dependencies 

working  together  to  annul  all  the  claims  of  the  Colonies 
which  could  possibly  interfere  with  the  prerogatives 
claimed  by  either  of  them. 

Both  factions  listened  eagerly,  therefore,  to  any  argu- 
ment, however  specious,  which  went  to  show  that  the 
power  of  the  King  and  Parliament  was  exactly  the  same 
in  the  American  Colonies  as  in  the  Realm  of  Great  Brit- 
ain, and  there  were  not  wanting  advocates  who  were  ready 
to  present  arguments  in  favor  of  this  theory. 

The  proposition  that  the  powers  of  the  King  and 
Parliament  were  the  same  in  the  Colonies  as  in  Great 
Britain  meant,  however,  that  the  position  which  the 
English  Government  had  taken  in  the  time  of  the  Com- 
monwealth, and  in  which  it  had  persisted  for  a  century 
and  more,  that  the  Colonies  were  "  dominions  and  terri- 
tories belonging  to  England  or  Great  Britain,"  in  the 
sense  of  being  external  to  and  dependent  upon  the 
body  and  personality  of  that  State,  was  a  mistake, — 
that  the  old  distinction  between  the  Realm  and  the 
Empire  was  unfounded, — that  there  was  no  British  Em- 
pire,— and  that  there  was  only  a  British  Realm,  of  which 
Great  Britain  was  an  integral  part  and  the  American 
Colonies  another  integral  part. 

On  this  theory,  it  was  necessary  to  prove  that  the  non- 
representation  in  the  British  Parliament  of  the  inhabitants 
of  the  Colonies,  or  the  impossibility,  by  reason  of  natural 
conditions,  of  their  being  effectively  represented,  did 
not  differentiate  their  political  status  from  that  of  the 
inhabitants  of  Great  Britain.  The  advocates  of  the  the- 
ory argued  that  the  people  of  the  Colonies  were  no  worse 
off  than  the  disfranchised  men  of  Great  Britain  (of 
whom  there  were  many  at  that  time,  owing  to  the  crude 
and  unsystematic  arrangements  established  by  statute 
relating  to  the  representation  in  the  House  of  Com- 
mons),  and  the  women,  children,  idiots,  convicts,  and 
paupers   of   Great  Britain,  who  were  "  virtually   repre- 


Realm  or  Empire,  1 750-1 765         133 

sented "  by  the  Parliament,  composed  of  King,  Lords, 
and  Commons. 

The  first  Act  of  Parliament  which  showed  signs  of  the 
tendency  of  Parliament  to  treat  the  American  Colonies 
as  parts  of  the  Realm,  and  to  deny  the  obligation  toward 
them  to  which  Great  Britain  was  justly  subject  as  the 
Imperial  State  on  which  they  were  dependent,  was  the 
Act  of  1750,  by  which,  upon  the  inadequate  considera- 
tion of  admitting  pig  iron  and  bar  iron  from  the  Colonies 
into  Great  Britain  free  of  duty,  the  erection,  in  any  of 
the  Colonies,  of  any  "  engine  for  slitting  or  rolling  iron, 
or  any  plating  forge  to  work  with  a  tilt-hammer,  or 
any  furnace  for  making  steel  "  was  forbidden.  A  penalty 
of  two  hundred  pounds  was  provided  for  violation  of  the 
Act,  and  any  mill,  furnace,  or  forge  erected  in  violation 
of  its  provisions  was  declared  a  common  nuisance  which 
it  was  made  the  duty  of  the  Governor  to  abate.  This 
Act  was  doubtless  justified,  by  those  who  believed  in 
the  existence  of  the  Empire,  as  a  proper  adjustment  of 
the  terms  of  the  "  colonial  pact"  as  the  French  called 
it,  or  as  necessary  under  the  "  mercantile  system,"  as 
it  was  then  understood.  All  the  European  metropoles 
took  upon  themselves  to  treat  their  Colonies  in  this  way. 
If  the  metropole  restricted  itself  in  any  way,  this  was  re- 
garded as  a  justification  for  almost  any  restriction  of  the 
dependency  in  favor  of  which  the  metropole  restricted 
itself. 

But  even  if  the  Act  of  1750  be  conceded  to  be  some- 
what ambiguous  concerning  the  theory  on  which  Parlia- 
ment legislated  for  the  American  Colonies,  there  is  less 
doubt  about  the  Act  of  175 1,  by  which  the  Colonies  of 
Massachusetts,  Rhode  Island,  Connecticut,  and  New 
Hampshire  were  forbidden  to  issue  bills  of  credit  except 
to  meet  the  current  expenses  in  anticipation  of  taxes  or 
in  case  of  emergency,  or  to  make  any  bills  of  credit  a 
legal  tender.     That  this  Act  was  not  based  on  the  theory 


134  The  Administration  of  Dependencies 

that  the  Colonies  could  not  constitutionally  issue  money 
is  clear  from  the  fact  that  it  applied  only  to  certain  of 
them,  and  that  Parliament,  after  having  enacted  in  1763 
an  Act  forbidding  any  Colony  to  make  its  bills  of  credit 
a  legal  tender,  passed  another  Act  in  1770,  which  allowed 
New  York  to  issue  Bills  of  credit  on  loan  paper  and  make 
them  a  legal  tender. 

Both  these  Acts  were,  of  course,  open  to  explanation 
as  legislation  of  the  Imperial  State  for  the  common  wel- 
fare, since  one  purported  to  be  a  regulation  of  trade  and 
the  other  a  regulation  concerning  the  currency ;  but  they 
were  both  arbitrary  measures  (the  Colonies  not  being  con- 
sulted), and  were  local  as  well  as  general,  in  their  effect ; 
and  hence  might  be  claimed  as  precedents  for  the  exer- 
cise of  unconditional  and  unlimited  power.  For  this 
reason,  they  provoked  and  alarmed  the  Colonists. 

Almost  at  the  same  time  that  Parliament,  by  thus 
dictating  to  the  Colonies  regulations  respecting  their 
manufactures  and  internal  commerce,  began  to  treat 
them  as  integral  parts  of  the  Realm,  "virtually  repre- 
sented "  in  Parliament,  George  II.  began  to  act  on  the 
same  principle.  In  1752,  by  his  order  in  Council,  the 
Lords  of  Trade  sent  out  instructions  to  all  the  Colonial 
Governors  requiring  them  to  submit  full  reports  on  all 
subjects  and  especially  on  all  matters  in  which  the  Colo- 
nies were  claimed  to  be  violating  the  rights  of  the  King 
or  Parliament,  and  their  recommendations  concerning 
the  action  which  ought  to  be  taken. 

While  the  answers  of  the  Colonial  Governors  to  these 
instructions  were  under  consideration  by  the  British 
Government,  the  war  with  France  broke  out,  and,  as  it 
was  evident  that  the  British  possessions  in  America  would 
be  attacked,  it  became  important  to  Great  Britain  to 
keep  the  good-will  of  the  Americans  and  of  the  Indian 
tribes  which  occupied  the  region  between  the  French 
and  the  British  possessions.     Consequently  all  thought 


Realm  or  Empire,  1 750-1 765         135 

of  bringing  the  Colonies  into  the  proper  subjection  of 
persons  "virtually"  represented  had  to  be  given  up, 
and  measures  had  to  be  taken  to  induce  the  Colonies  to 
put  themselves  in  a  position  to  effectually  co-operate 
with  Great  Britain  in  negotiating  with  the  Indian  tribes 
and  in  defending  the  American  frontier.  In  order  to 
accomplish  this,  the  British  Government  instructed  the 
Colonial  Governors  to  have  the  Colonies  send  repre- 
sentatives to  the  meeting  with  the  Indian  chiefs  ap- 
pointed to  be  held  at  Albany  in  July,  1754,  who  should 
assist  in  mclking  a  treaty  of  alliance  with  the  Six 
Nations,  and  take  measures  for  the  general  defence. 
Massachusetts  Bay,  Pennsylvania,  New  York,  Connecti- 
cut, Rhode  Island,  and  New  Hampshire  were  represented. 
The  delegates  so  met,  all  of  whom  were  men  of  promi- 
nence in  their  respective  Colonies,  apparently  without  the 
least  thought  that  they  were  acting  in  any  way  in  viola- 
tion of  the  purpose  for  which  they  were  assembled, 
agreed  upon  a  "  Plan  of  Union,"  which  proposed  to  the 
different  Colonies  "  that  humble  application  be  made  for 
an  Act  of  the  Parliament  of  Great  Britain,  by  virtue  of 
which  one  General  Government  may  be  formed  in  Amer- 
ica, including  all  the  said  Colonies,  and  under  which 
Government  each  Colony  may  retain  its  present  consti- 
tution, except  in  the  particulars  wherein  a  change  may 
be  directed  by  the  said  Act." 

The  Plan  of  Union  related  to  only  two  subjects — the 
administration,  as  dependencies  of  the  American  Colo- 
nies, of  the  Indian  tribes  and  the  settlements  of  whites 
in  the  Western  country ;  and  the  defence  of  the  Colonies. 
There  was  to  be  a  President-General,  to  be  appointed 
and  supported  by  the  Crown,  and  a  Grand  Council  of 
delegates  from  the  Colonies,  appointed  by  their  General 
Assemblies.  The  power  of  the  President-General  and 
Grand  Council  to  enact  laws  (subject  to  the  approval  of 
the  King  in  Council)  and  to  levy  taxes  was  thus  worded: 


136  The  Administration  of  Dependencies 

That  the  President-General  with  the  advice  of  the  Grand 
Council,  hold  or  direct  all  Indian  treaties  in  which  the  general 
interest  of  the  Colonies  may  be  concerned;  and  make  peace 
or  declare  war  with  Indian  nations.  That  they  make  such 
laws  as  they  judge  necessary  for  the  regulating  of  all  Indian 
trade.  That  they  make  all  purchases  from  Indians  for  the 
Crown,  of  lands  not  now  within  the  bounds  of  particular 
Colonies,  or  that  shall  not  be  within  their  bounds  when  some 
of  them  are  reduced  to  more  convenient  dimensions.  That 
they  make  new  settlements  on  such  purchases  by  granting 
lands  in  the  King's  name,  reserving  a  quit-rent  to  the  Crown 
for  the  use  of  the  General  Treasury. 

That  they  make  laws  for  regulating  and  governing  such  new 
settlements,  till  the  Crown  shall  think  fit  to  form  them  into 
particular  Governments. 

That  they  raise  and  pay  soldiers,  and  build  forts  for  the 
defence  of  any  of  the  Colonies,  and  equip  vessels  of  force  to 
guard  the  coasts  and  protect  the  trade  on  the  ocean,  lakes,  or 
great  rivers,  but  they  shall  not  impress  men  in  any  Colonies 
without  the  consent  of  its  Legislature.  That  for  these  pur- 
poses they  have  power  to  make  laws  and  lay  and  levy  such 
general  duties,  imposts  or  taxes,  as  to  them  shall  appear  most 
equal  and  just,  considering  the  ability  and  other  circumstances 
of  the  inhabitants  in  the  several  Colonies,  and  such  as  may  be 
collected  with  the  least  inconvenience  to  the  people,  rather 
discouraging  luxury,  than  loading  industry  with  unnecessary 
burthens. 

At  the  same  time  that  the  Plan  of  Union  was  adopted, 
the  delegates  also  adopted  a  "  Representation  on  the 
State  of  the  Colonies." 

In  the  Representation  it  was  proposed : 

That  the  bounds  of  these  Colonies  which  extend  to  the 
South  Sea,  be  contracted  and  limited  by  the  Allegheny  or 
Appalachian  Mountains  ; 

That  measures  be  taken  for  settling  from  time  to  time  Colo- 
nies of  His  Majesty's   protestant  subjects,    westward  of  the 


Realm  or  Empire,  1 750-1 765         137 

said  Mountains,  in  convenient  cantons  to  be  assigned  for  that 
purpose;  and 

That  the  patentees  or  possessors  of  large  unsettled  territories 
be  enjoined  to  cause  them  to  be  settled  in  a  reasonable  time 
on  pain  of  forfeiture. 

The  plain  purpose  of  both  the  Representation  and  the 
Plan  of  Union  was  that,  as  soon  as  the  limits  of  the  Amer- 
ican General  Government  should  be  fixed  by  the  order  of 
the  King  in  Council  or  by  Act  of  Parliament,  the  Ameri- 
can General  Government  should  administer  the  settle- 
ments in  the  Western  region  as  its  dependencies.  It  is 
true  that  the  Plan  of  Union  provided  that  this  power 
was  to  exist  only  until  the  Crown  should  think  fit  to  form 
the  new  settlements  into  particular  Governments;  but  the 
important  thing  is  that  it  should  have  been  proposed  to 
the  British  Government  that  an  American  General  Gov- 
ernment should  constitute  the  Imperial  Government  of 
the  Western  dependencies,  even  for  the  purposes  of  tem- 
porary administration. 

If  there  is  any  doubt  that  the  framers  of  the  Plan  of 
Union  intended  that  the  new  Colonies  in  the  transmon- 
tane  region  should  be  American,  and  not  English  Colo- 
nies, it  is  removed  by  what  Franklin,  the  author  of  the 
plan,  in  his  pamphlet,  published  in  1754,  entitled  Rea- 
sons and  Motives  on  which  the  Plan  of  Union  was  Formed, 
said  about  the  provisions  which  permitted  the  Governor 
in  Council  to  make  new  settlements  on  land  purchased 
from  the  Indians.     His  words  were: 

It  is  supposed  better  that  there  should  be  one  purchaser 
than  many;  and  that  the  Crown  should  be  the  purchaser,  or 
the  Union  in  the  name  of  the  Crown.  By  this  means  the  bar- 
gains may  be  more  easily  made,  the  price  not  enhanced  by 
numerous  bidders,  future  disputes  about  private  Indian  pur- 
chases, and  monopolies  of  vast  tracts  to  particular  persons, 
(which  are  prejudicial  to  the  settlement  and  peopling  of  the 


138  The  Administration  of  Dependencies 

country),  prevented;  and  the  land  being  again  granted  in 
small  tracts  to  settlers,  the  quit-rents  reserved  may  in  time 
become  a  fund  for  the  support  of  government,  for  defence  of 
the  country,  ease  of  taxes,  etc. 

Strong  forts  on  the  Lakes,  the  Ohio,  etc.,  may  at  the  same 
time  that  they  secure  our  present  frontiers,  serve  to  defend 
new  Colonies  settled  under  their  protection;  and  such  Colonies 
would  also  mutually  defend  and  support  such  forts,  and  better 
secure  the  friendship  of  the  far  Indians. 

A  particular  Colony  has  scarce  strength  enough  to  extend 
itself  by  new  settlements,  at  so  great  a  distance  from  the  old; 
but  the  joint  force  of  the  Union  might  suddenly  establish  a 
new  Colony  or  two  in  these  parts,  or  extend  an  old  Colony  to 
particular  passes,  greatly  to  the  security  of  the  present  fron- 
tiers, increase  of  trade  and  people,  breaking  off  the  French 
connection  between  Canada  and  Louisiana,  and  the  speedy 
settlement  of  the  intermediate  lands. 

The  power  of  settling  new  Colonies  is,  therefore,  thought  a 
valuable  part  of  the  plan. 

Referring  to  the  provision  in  the  Plan  of  Union  author- 
izing the  President-General  and  Council  "  to  make  laws 
for  regulating  and  governing  such  new  settlements,  till  the 
Crown  shall  think  fit  to  form  them  into  particular  Govern- 
ments," Franklin  said: 

The  making  of  laws,  suitable  for  the  new  Colonies,  it  was 
thought,  would  be  properly  vested  in  the  President-General 
and  Grand  Council,  under  whose  protection  they  must,  at  first, 
necessarily  be,  and  who  would  be  well  acquainted  with  their 
circumstances,  as  having  settled  them.  When  they  are  be- 
come sufficiently  populous,  they  may  by  the  Crown  be  formed 
into  complete  and  distinct  Governments. 

The  Plan  of  Union  plainly  provided  for  the  establish- 
ment of  an  American  Empire,  dependent  on  the  Imperial 
State  of  Great  Britain,  that  is  to  say,  for  the  establish- 


Realm  or  Empire,  1 750-1 765         139 

ment  of  an  imperiurn  in  iniperio,  or  sub-Empire.  The 
twelve  Colonies  then  existing  (Delaware  being  then  a 
dependency  of  Pennsylvania)  were  to  constitute  the  sub- 
Imperial  State  or  the  sub-metropole.  As  a  plan  for 
establishing  an  American  sub-Empire,  it  was  "  complete 
in  itself,"  to  quote  the  sarcastic  language  of  the  Lords  of 
Trade  in  their  report  upon  it  to  the  Privy  Council,  be- 
cause it  gave  the  General  Government  complete  powers 
for  the  administration  of  the  dependencies  in  the  West- 
ern country.  As  a  plan  for  a  General  Government  for 
all  the  common  purposes  of  the  Colonies,  however,  it  was 
incomplete,  since  the  General  Government  was  given  no 
powers  to  legislate  for  the  common  convenience  and 
welfare  except  as  regards  the  administration  of  depend- 
encies and  the  common  defence.  Had  the  Plan  been 
adopted,  the  separate  Colonies  would  have  had  to  make 
such  arrangements  regarding  all  other  matters  of  com- 
mon interest  as  could  be  brought  about  by  diplomatic 
negotiation  between  them,  subject  to  the  approval  of  the 
King  in  Council. 

The  words  used  to  describe  the  power  which  the  Gen- 
eral Government,  composed  of  the  President-General 
and  Grand  Council  assembled  as  the  Legislature  of  the 
sub-Empire,  was  to  have  in  the  administration  and  gov- 
ernment of  the  dependencies  of  the  sub- Empire,  are 
noticeable.  They  were  to  be  given  power  by  Act  of 
Parliament  to  make  laws  "  for  regulating  and  governing 
such  new  settlements,"  till  the  Crown  should  think  fit  to 
form  them  into  particular  Governments. 

That  they  were  to  have  this  power  only  till  the  Crown 
acted,  shows  that  they  were  to  act  in  lieu  of  the  Crown, 
and  therefore,  in  the  same  way  and  under  the  same  ob- 
ligations as  the  Crown  would  have  acted.  But  if  the 
power  had  been  granted  permanently  instead  of  tem- 
porarily, the  expression  "  for  regulating  and  governing 
such  new  settlements  "  would  have  made  it  certain  that 


I40  The  Administration  of  Dependencies 

they  were  to  act  in  lieu  of  the  Crown  and  under  its  obli- 
gations and  restrictions. 

The  word  "  regulate"  had,  at  this  time,  come  into 
considerable,  though  not  universal  use  in  the  English 
public  law  to  describe  the  supreme  power  in  the  State, 
when  exercised  expertly.  In  the  first  English  translation 
of  Vattel's  Law  of  Nations,  made  in  1760,  the  passage 
relating  to  the  power  of  the  State,  the  original  of  which 
is  quoted  above  on  page  13,  is  thus  rendered : 

The  country  inhabited  by  one  nation  ...  is  the  settle- 
ment of  the  nation,  and  it  has  a  proper  and  exclusive  right 
to  it. 

This  right  comprehends  two  things:  i.  The  domain,  in 
virtue  of  which  the  nation  alone  may  use  this  country  for  the 
supply  of  its  necessities,  and  may  dispose  of  it  in  such  a  man- 
ner and  derive  from  it  such  advantages,  as  it  thinks  proper. 
2.  The  empire,  or  the  right  of  sovereign  command,  by  which 
the  nation  ordains  and  regulates  at  its  pleasure  everything  that 
passes  in  the  country. 

By  comparing  this  translation  with  the  original,  it  will 
be  observed  that  the  expression  disposer  de  is  translated 
"  dispose  of  "  when  it  refers  to  what  Vattel  calls  "  the 
domain  "  of  a  state,  and  "  regulate  "  when  it  refers  to 
what  he  calls  "  the  empire."  A  "  regulation,"  therefore, 
in  the  view  of  the  translator,  was  evidently  a  disposition 
relating  to  the  actions  of  persons,  as  distinguished  from  a 
disposition  relating  to  land  or  things.  Just  how  the  dis- 
tinction arose  can  only  be  surmised.  A  reason  which  is 
at  least  plausible  is  that  the  expression  "  dispose  of" 
had  by  process  of  derivation  come  to  be  used  in  such  a 
way  as  made  its  meaning  somewhat  ambiguous,  as  applied 
to  persons  and  their  actions.  One  of  these  meanings 
(which  the  expression  still  has)  was  that  of  transferring 
control  or  ownership  by  will,  by  sale,  or  by  gift.  Evi- 
dently this  meaning  was  derived   from  a  supposed  re- 


Realm  or  Empire,  1750- 1765         141 

semblance  between  a  disposition  of  property  by  will  and 
an  alienation  of  the  title  to  property.  A  will  is  a  disposi- 
tion of  property  in  the  sense  of  a  setting  one's  property 
in  order  for  death,  but  as  it  also  works  a  transfer  of  the 
title,  the  two  ideas  seem  to  have  become  confused,  so 
that  it  has  become  customary,  in  ordinary  usage,  to 
speak  of  disposing  of  property  when  one  means  merely 
selling  or  giving  it  away,  and  intends  to  convey  no  idea 
of  setting  his  affairs  in  order  by  the  transaction.  Besides 
this  meaning,  also,  it  came  to  have,  by  derivation  from 
its  meaning  of  disposing  or  adjudicating  upon  problems 
relating  to  human  action,  the  meaning  of  "  determining 
the  fate  of"  persons,  and  by  still  further  derivation  of 
**  destroying  the  existence  of  "  persons  or  "  getting  rid 
of  "  them.  These  curious  changes  of  meaning  had  never 
been  allowed  in  the  public  law,  but  they  had  evidently 
become  so  well  fixed  in  popular  usage  in  1760  that  the 
word  "  regulate  "  was  preferred  by  some  writers  on  the 
public  law  as  applied  to  the  power  of  the  King  over 
the  actions  and  affairs  of  persons,  natural  and  corporate, 
instead  of  "  dispose  of."  While  the  usage  was  not  fixed, 
the  acts  of  the  Crown  or  Parliament  relating  to  land  and 
things,  or  to  communities  when  regarded  as  objects 
without  personality,  seem  generally  to  have  been  spoken 
of  as  "  dispositions,"  and  the  acts  relating  to  persons, 
and  to  communities  when  regarded  as  legal  and  political 
persons,  as  "  regulations." 

By  the  Treaty  of  Paris  of  February  10,  1763,  Canada 
and  all  the  region  east  of  the  Mississippi  and  certain  isl- 
ands of  the  West  Indies  were  ceded  to  Great  Britain. 
By  Proclamation  in  Council,  of  October  7,  1763, 
George  III.  "  erected  .  .  .  four  distinct  and  separate 
Governments,  styled  and  called  by  the  names  of  Quebec, 
East  Florida,  West  Florida  and  Grenada,"  which  cov- 
ered every  part  of  the  region  ceded  or  relinquished  by 
the  Treaty  which  was  unmistakably  outside  the  charter 


142  The  Administration  of  Dependencies 

limits  of  any  of  the  American  Colonies,  and,  after  so 
erecting  these  Governments,  forbade  the  Colonies  to 
make  or  allow  any  settlements  in  the  remainder  (which 
they  claimed  was  within  their  charter  limits)  beyond  the 
heads  of  the  rivers  which  emptied  into  the  Atlantic — that 
is,  beyond  the  ridge  of  the  Allegheny  or  Appalachian 
Mountains.  As  the  Atlantic  slope  of  this  range  has  a 
maximum  width  of  two  hundred  miles,  and  a  minimum 
width  (near  New  York)  of  only  a  few  miles,  it  is  evident 
that  this  restriction  of  the  boundaries  of  the  Colonies  was 
a  very  serious  matter.  Added  to  this,  the  new  Govern- 
ments erected  by  the  Proclamation  were  without  self- 
government  and  under  the  immediate  control  of  the 
Crown,  from  which  it  was  natural  to  suppose  that  all 
other  Governments  erected  by  the  Crown  in  the  Western 
country  would,  at  the  outset,  at  least,  be  of  the  same  kind. 

Thus  the  American  scheme  for  a  sub-Empire  was  an- 
nulled, and  George  III.  declared  that  there  should  be 
only  one  Realm  or  Empire,  and  that  the  Realm  or  Em- 
pire of  Great  Britain. 

This  Proclamation  incidentally  established  the  policy 
of  the  British  Government  respecting  the  treatment  of 
the  Indian  tribes.  They  were  described  as  "  the  several 
nations  or  tribes  of  Indians,  with  whom  we  are  connected 
and  who  live  under  our  protection."  The  lands  occupied 
by  them  were  described  as  "  parts  of  our  dominions  and 
territories  reserved  to  them,  as  their  hunting  grounds." 
They  were  thus  declared  to  be  dependencies  of  Great 
Britain.  The  method  of  administration  of  these  un- 
civilized dependencies  outlined  in  the  Plan  of  Union  as 
the  course  proper  to  be  followed  by  the  General  Govern- 
ment of  the  American  sub- Empire  was  adopted  as  the 
method  to  be  pursued  by  the  Central  Government  of  the 
British  Empire.  Purchases  by  private  persons  from 
the  Indians  or  from  Indian  tribes  were  forbidden :  trade 
with  them,  though  free  to  any  one  who  chose  to  engage 


Realm  or  Empire,  1 750-1 765         143 

in  it,  could  be  carried  on  only  under  a  royal  license 
issued  by  a  royal  Governor  and  upon  giving  security  for 
the  observance  of  "  such  regulations  as  we  shall  at  any 
time  think  fit,  by  ourselves  or  commissaries,  to  be  ap- 
pointed for  that  purpose,  to  direct  and  appoint  for  the 
benefit  of  the  said  trade."  All  purchases  of  Indian  lands 
were  to  be  by  the  Crown.  This  was  an  excellent  policy 
for  the  Indian  tribes,  but  it  was,  in  the  opinion  of  the 
Americans,  a  violation  of  their  constitutional  rights  as 
parts  of  the  British  Empire,  secured  to  them  by  their 
Charters,  to  administer  the  affairs  of  these  tribes  as  if  they 
were  dependencies  of  the  Colonies. 

In  the  Annual  Register  of  1763,  which  is  said  to  have 
been  edited  by  Edmund  Burke,  the  following  comment 
is  made  upon  this  part  of  the  Proclamation,  which  is  in- 
teresting as  showing  the  difficulty  which  even  the  best 
informed  people  of  England  had  in  understanding  its  full 
purport,  or  at  least  their  unwillingness  to  assume  that  the 
Proclamation  was  a  part  of  a  design  of  the  British  Govern- 
ment to  alter  the  constitutional  status  of  the  American 
Colonies.  The  passage  is  interesting,  also,  because  it 
describes  the  power  of  the  Crown  over  the  Western 
region  as  a  power  of  "  disposition."     It  was  as  follows: 

The  reader  will  observe,  and  possibly  with  some  surprise, 
that  in  this  distribution,  much  the  largest,  and  perhaps  the 
most  valuable  part  of  our  conquests,  does  not  fall  into  any  of 
these  Governments. 

Many  reasons  may  be  assigned  for  this  apparent  omission. 
A  consideration  of  the  Indians  was,  we  presume,  the  principal, 
because  it  might  have  given  a  sensible  alarm  to  that  people,  if 
they  had  seen  us  formally  cantoning  out  their  whole  country 
into  regular  establishments.     .     . 

Another  reason,  we  suppose,  why  no  disposition  has  been  made 
of  the  inland  country,  was,  that  the  Charters  of  many  of  our  old 
Colonies  give  them,  with  very  few  exceptions,  no  other  bounds 
to  the  westward  but  the  South  Sea. 


144  The  Administration  of  Dependencies 

On  April  5,  1764,  Pariiament,  by  the  procurement  of 
the  King  and  the  Ministry,  enacted  the  Tariff  Act  of 
1764,  imposing  duties  on  sugar,  molasses,  syrups,  indigo, 
coffee,  wines,  cambrics,  lawns,  silks,  silk  stuffs,  and  cali- 
coes, imported  into  the  Colonies,  with  a  proviso  that  the 
net  proceeds  of  the  duties  should 

be  paid  into  the  receipt  of  his  Majesty's  Exchequer,  and 
entered  separate  and  apart  from  all  other  moneys  paid  or  pay- 
able to  his  Majesty,  his  heirs  or  successors;  and  be  there 
reserved  to  be,  from  time  to  time,  disposed  of  by  Parliament 
towards  defraying  the  necessary  expenses  of  defending,  pro- 
tecting and  securing  the  British  Colonies  and  Plantations  in 
America. 

The  Tariff  Act  of  1764  followed  the  old  form  of  tax 
statutes,  brought  over  from  the  thirteenth  century,  ac- 
cording to  which  the  Commons  of  Great  Britain  "  gave 
and  granted  "  to  the  King  "  the  several  rates  and  duties 
hereinafter  mentioned."  This  form  of  expression  neces- 
sarily implied  that  the  King  was  a  personality  apart  from 
the  people,  exercising  power  by  virtue  of  his  preroga- 
tive and  not  by  virtue  of  his  being  a  governmental 
agent,  between  whom  and  the  people  a  relationship  ex- 
isted which  permitted  of  contracts  and  conveyances  be- 
tween him  and  them  ;  and  that  the  House  of  Commons 
was  essentially  all  the  people  of  Great  Britain,  assembled 
by  their  representatives,  who  gave  and  granted  a  part  of 
their  property  to  the  King. 

The  preamble  of  the  Tariff  Act  of  1764  read: 

Whereas  it  is  expedient  that  new  provisions  and  regulations 
should  be  established  for  improving  the  revenue  of  this  King- 
dom, and  for  extending  and  securing  the  navigation  and  com- 
merce between  Great  Britain  and  your  Majesty's  dominions 
in  America,  which  by  the  Peace  have  been  so  happily  enlarged ; 
and  whereas  it  is  just  and  necessary  that  a  revenue  should  be 


Realm  or  Empire,  1 750-1 765         145 

raised  in  your  Majesty's  dominions  in  America,  for  defraying 
the  expenses  of  defending,  protecting,  and  securing  the  same: 
we,  your  Majesty's  most  dutiful  and  loyal  subjects,  the  Com- 
mons of  Great  Britain,  in  Parliament  assembled,  being  desirous 
to  make  some  provision,  in  this  present  session  of  Parliament, 
towards  raising  the  said  revenue  in  America,  have  resolved  to 
give  and  grant  unto  your  Majesty  the  several  rates  and  duties 
hereinafter  mentioned. 

As  the  House  of  Commons  of  Great  Britain  could  not, 
by  any  stretch  of  the  imagination,  be  considered  as  the 
meeting  together  of  the  people  of  Great  Britain  and  the 
people  of  the  American  Colonies,  since  the  people  of 
the  Colonies  sent  no  representatives  to  that  House,  the 
giving  and  granting  of  a  tax  by  the  Commons  of  Great 
Britain  on  the  property  of  the  people  of  the  American 
Colonies  was  a  plain  case  of  the  people  of  Great  Britain 
giving  avi^ay  the  property  of  the  people  of  America. 

The  language  of  the  Tariff  Act  denied  both  limits 
and  conditions  upon  the  power.  The  people  of  Great 
Britain,  assembled  in  the  House  of  Commons  by  their 
elected  representatives, — that  is,  the  State  of  Great 
Britain,  since  the  people  of  that  State,  acting  through 
the  House  of  Commons,  were  the  ultimate  power  of 
that  State, — it  was  claimed,  had  power  over  the  property 
of  the  people  of  America  without  specific  limits  of 
extent  and  without  specific  conditions  on  the  manner 
of  its  exercise.  He  who  has  power  to  "  give  and  grant  " 
property  has  unlimited  and  unconditional  power  over  it, 
in  a  legal  sense. 

Undoubtedly,  however,  it  will  not  do  to  lay  too  much 
stress  on  these  words.  They  were  a  mere  formula.  By 
the  constitutional  settlement  of  1689,  the  Kings  of  Eng- 
land became  governmental  agents  of  the  people  and 
participants  in  legislation  with  the  Lords  and  Commons. 
All  that  either  of  the  three  parties  to  legislation  could 
thereafter   claim    for   itself   was  the   right   of  initiating 


146  The  Administration  of  Dependencies 

certain  kinds  of  legislation.  The  Commons,  because  of  the 
old  theory  according  to  which  they  "  gave  and  granted  " 
taxes  to  the  King,  claimed  the  right  to  initiate, all  tax 
legislation, — or,  to  use  the  common  phrase,  to  ^'  originate 
money  bills,"  and  the  old  form  of  words  was  continued 
as  evidencing  this  right.  Had  Parliament  passed  an  Act 
with  the  simplest  form  of  enacting  clause  imaginable, 
imposing  the  duties  specified  in  the  Act  on  imports  into 
the  American  Colonies,  the  case  would  not  have  been 
altered  in  the  least. 

This  Act  also  contained  the  following  provision : 

All  the  forfeitures  and  penalties  inflicted  by  this  or  any 
other  Act  or  Acts  of  Parliament  relating  to  the  trade  and 
revenues  of  the  said  British  Colonies  or  Plantations  in  Amer- 
ica, which  shall  be  incurred  there,  shall  and  may  be  prose- 
cuted, sued  for,  and  recovered,  in  any  court  of  record,  or  in 
any  Court  of  Admiralty,  in  the  said  Colonies  or  Plantations 
where  such  offence  shall  be  committed,  or  in  any  Court  of 
Vice-Admiralty  which  may  or  shall  be  appointed  over  all 
America,  (which  Court  of  Admiralty  or  Vice-Admiralty  are 
hereby  respectively  authorized  and  required  to  proceed,  hear 
and  determine  the  same),  at  the  election  of  the  informer  or 
prosecutor. 

This  extension  of  the  jurisdiction  of  the  Admiralty  to 
customs  and  revenue  cases  was  the  extension  of  the  sys- 
tem of  trial  without  a  jury  which  had  hitherto  been  in 
force  only  with  respect  to  causes  of  action  arising  on  the 
sea,  to  cases  arising  on  the  land.  The  Lord  High  Ad- 
miral, or  the  Lords  of  the  Admiralty  when  the  office  was 
held  by  a  Board  of  Commissioners,  had  charge  of  the 
British  interests  on  the  seas.  Upon  the  enactment  of 
the  Navigation  Acts  for  regulating  the  trade  between 
Great  Britain  and  foreign  States  and  between  it  and  its 
dependencies,  the  jurisdiction  of  offences  against  these 
Acts  seems  to  have  been  considered  as  vested  in  the 


Realm  or  Empire,  1 750-1 765         147 

Courts  of  Admiralty.  The  first  recognition  of  this  juris- 
diction seems  to  be  in  the  Act  of  1670,  "to  Prevent  the 
Planting  of  Tobacco  in  England  and  for  Regulating  the 
Plantation  Trade,"  in  which  it  was  provided  that  ships 
violating  the  Navigation  Acts  should  be  forfeited  "  in 
any  of  the  said  Plantations,  in  the  Court  of  the  High 
Admiral  of  England  or  of  any  of  his  Vice- Admirals. " 
In  some  of  the  Colonies  Vice-Admiralty  Courts  were  es- 
tablished by  the  Crown,  which  had  jurisdiction  of  offences 
against  the  Trade  and  Navigation  Acts  by  ship-captains 
and  mariners  landing  in  the  Colonies.  Where  such 
courts  were  not  established,  Colonial  Courts  were,  by 
Colonial  statutes,  given  admiralty  jurisdiction.  The 
procedure  in  the  Admiralty  Courts  was  by  way  of  libel 
and  seizure  of  the  vessel,  and  the  case  was  determined 
without  a  jury.  Offences  against  laws  imposing  duties 
on  importation  of  goods  into  the  Colonies  were,  of 
course,  committed  on  land,  since  the  duties  did  not 
attach  until  the  goods  were  landed,  and  hence  such 
offences  were  not  within  the  jurisdiction  of  the  Court 
of  Admiralty.  Cases  arising  from  the  non-payment 
of  import  duties  were  revenue  cases,  in  which  the 
State  sued  in  a  civil  or  criminal  action.  In  England, 
such  suits  were  brought  in  the  Court  of  the  Exchequer; 
in  the  Colonies  they  might  be  brought  in  any  court  of 
general  jurisdiction.  They  were  triable  by  court  and 
jury.  To  confer  jurisdiction  of  such  cases  on  the  Courts 
of  Vice-Admiralty  in  the  Colonies  was  to  treat  the  Colo- 
nies as  if  they  were  English  ships  at  sea, — that  is,  as  if 
they  had  no  political  status  whatever,  but  were  mere 
outlying  appendages  of  the  soil  of  Great  Britain  subject 
to  the  unlimited  and  unconditioned  will  of  Parliament. 

This  Act  mentioned  "a  Court  of  Vice- Admiralty  which 
may  or  shall  be  appointed  over  all  America."  It  was 
evidently  the  intention  of  the  British  Government  to 
place  the  whole  admiralty  jurisdiction  in  all  the  Colonies 


148  The  Administration  of  Dependencies 

in  one  court,  to  be  called  the  Court  of  Vice-Admiralty 
to  distinguish  it  from  the  British  Court  of  Admiralty, 
which  would  undoubtedly  have  had  branches  in  each 
Colony,  and  the  judges  of  which  would  all  have  been 
appointed  by  the  Crown.  On  this  Court  it  seems  to  have 
been  the  intention  to  confer  such  jurisdiction  as  might 
be  deemed  from  time  to  time  necessary,  for  the  protec- 
tion of  the  Imperial  interests.  Had  such  a  Court  of 
Vice-Admiralty  as  proposed  been  established,  it  would 
have  been,  in  fact,  an  Imperial  Court,  as  distinguished 
from  the  Colonial  Courts. 

On  March  22,  1765,  Parliament  passed  the  Stamp  Act. 
This  Act,  like  the  Tariff  Act  of  1764,  purported  to 
"  give  and  grant  "  the  rates  and  taxes  authorized 
by  it.  The  duties,  which  were  imposed  on  every 
kind  of  business  instrument  or  document,  newspapers, 
pamphlets,  calendars,  almanacs,  advertisements  in  news- 
papers or  pamphlets,  playing-cards,  and  dice,  were 
more  troublesome  than  those  authorized  by  the  Tariff 
Act  of  the  previous  year,  because  they  had  to  be  paid  in 
piecemeal  by  the  user  and  not  in  bulk  in  the  first  instance 
by  the  importer,  and  later  on  by  the  consumer  in  an  in- 
crease of  price  of  the  commodity.  The  same  provision 
as  in  the  Tariff  Act  of  1764  regarding  the  payment  of  the 
net  proceeds  into  the  Imperial  Treasury  and  using  them 
for  the  Imperial  defence  in  the  American  Colonies  was 
inserted  in  the  Stamp  Act. 

The  Stamp  Act  contained  a  provision  similar  to  that 
of  the  Tariff  Act  of  1764,  giving  jurisdiction  of  customs 
cases  arising  under  it  or  other  Tariff  Acts  to  the  Courts 
of  Admiralty  or  to  the  Imperial  Court  of  Vice-Admiralty, 
and  also  gave  the  right  of  appeal  in  customs  cases  to 
the  Imperial  Court  of  Vice-Admiralty,  to  any  party  ag- 
grieved by  the  decision  of  a  Colonial  Court  having  ad- 
miralty jurisdiction,  or  by  the  decision  of  any  existing 
Court  of  Vice-Admiralty  in  the  Colonies. 


Realm  or  Empire,  1750- 1765         149 

The  Stamp  Act,  based  expressly,  as  it  was,  on  the 
claim  that  Parliament  had  unconditioned  and  unlimited 
power  in  the  Colonies,  and  affecting,  as  it  did,  every 
transaction  between  individuals  in  the  Colonies,  squarely 
raised  the  question  whether  the  Colonies  were  integral 
parts  of  the  British  State  or  component  parts  of  the 
British  Empire.  If  the  Colonies  were  integral  parts  of 
the  British  State,  Parliament  had  undoubtedly  the 
same  unconditioned  and  unlimited  power  over  them  and 
their  inhabitants  that  it  had  over  the  Counties  of  the 
Realm  and  their  inhabitants.  If,  on  the  other  hand,  the 
Colonies  were  political  persons  external  to  the  British 
State,  in  constitutional  relationship  with  that  State,  the 
power  of  Parliament  over  them  was  measured  by  the 
power  of  the  State  of  Great  Britain  over  them,  and 
the  conditions  and  limitations  of  that  power  were  to  be 
determined  by  the  constitutional  adjudications  and  set- 
tlements (dispositions)  made  by  Great  Britain,  through 
the  branch  of  its  Government  having  charge  of  its  Im- 
perial relations,  for  and  with  the  Colonies,  on  principles 
of  just  Imperial  government.  If  the  Colonies  had  ac- 
quiesced in  the  claim  that  Parliament  had  power  to  pass 
the  Stamp  Act,  the  British  Empire  would  have  ceased  to 
exist  and  in  its  stead  there  would  have  existed  a  British 
Realm  including  all  America.  When  the  Americans  op- 
posed the  Stamp  Act,  they  were  upholding  the  state- 
hood of  the  Colonial  communities,  as  component  parts  of 
the  political  organism  composed  of  Great  Britain  as  the 
Imperial  State,  and  the  Colonies  as  its  dependencies, 
known  as  the  British  Empire, — a  political  organism 
which  they  believed  to  be  right  in  principle  and  neces- 
sary and  proper  for  their  own  welfare  as  well  as  for  that 
of  Great  Britain.  In  a  word,  it  may  be  said  that  when 
the  Americans  opposed  the  Stamp  Act,  they  were  up- 
holding the  British  Empire,  and  that  the  real  Revolution 
occurred  when  Great  Britain,  by  passing  the  Stamp  Act 


ISO  The  Administration  of  Dependencies 

and  thus  claiming  for  itself  unconditioned  and  unlimited 
power  over  the  Colonies,  denied  their  member-state- 
hood and  hence  the  existence  of  the  British  Empire. 


CHAPTER   IX 

THE  STAMP  ACT  CONGRESS,  1765 

THE  claim  of  Great  Britain  of  the  right  to  tax  the 
Colonies  was  based  upon  two  grounds :  First,  that 
Great  Britain  and  the  Colonies  formed  one  political 
organism,  and  that  all  parts  of  the  same  political  organ- 
ism ought  to  contribute  to  its  support  according  to  laws 
established  by  the  Central  Legislature  and  enforced  by 
the  Central  Executive;  and  second,  that  it  was  unjust  to 
Great  Britain  that  it  should  expend  the  money  for  the 
common  defence  and  welfare  and  receive  nothing,  or 
only  so  much  as  the  Colonies  chose  voluntarily  to  con- 
tribute, for  so  doing.  Both  these  propositions  were  met 
by  writers  of  great  ability  in  the  Colonies. 

The  first  in  the  field  was  James  Otis  of  Massachusetts, 
who  had  already  made  himself  famous  by  resigning  the 
office  of  Prosecutor  for  the  Crown  when  the  duties  of  the 
office  required  him  to  uphold  the  writs  of  assistance  at- 
tempted to  be  issued  by  the  courts,  as  general  search- 
warrants,  in  aid  of  the  customs  officers,  and  by  appearing, 
in  opposition  to  the  Crown,  to  dispute  the  constitu- 
tionality of  the  writs. 

In  1764,  he  published  a  pamphlet  entitled  The  Rights 
of  the  Colonies  Asserted  and  Proved^  in  which  he  en- 
deavored to  prove  that  the  power  of  Parliament,  whether 
exercised  in  the  Realm  or  in  the  Empire,  was  the 
same,  but  that  it  was  conditioned  and  limited  by  the 
principles  of  natural  justice — which  merely  meant  that 
the  courts   of   the  Realm  and   of   the  Colonies   should 

151 


152  The  Administration  of  Dependencies 

determine    the   validity   of  Acts    of    Parliament.       He 
said: 

The  question  is  not  upon  the  general  power  of  Parliament, 
but  whether  it  is  not  circumscribed  within  some  equitable  and 
reasonable  bounds.  It  is  hoped  that  it  will  not  be  considered 
as  a  new  doctrine  that  even  the  authority  of  the  Parliament  of 
Great  Britain  is  circumscribed  by  certain  bounds,  which,  if 
exceeded,  their  acts  become  those  of  mere  power  without 
right,  and  consequently  void. 

In  support  of  this  proposition,  he  quoted  dicta  of  Lord 
Coke  and  Lord  Hobart,  which,  however,  had  never  been 
followed  by  the  English  courts.  Nothing  was  better 
settled  than  that  there  were  no  constitutional  conditions 
or  limitations  upon  the  power  of  Parliament  when  exer- 
cised within  the  Realm  of  Great  Britain,  and  as  he  did  not 
differentiate  the  Realm  from  the  Empire,  his  argument 
did  not  help  to  elucidate  the  great  question, — which  was, 
how  the  rights  and  liberties  of  the  Colonies  and  of  their 
inhabitants  could  be  preserved  consistently  with  the 
Colonies  remaining  in  a  relationship  of  dependency  on 
Great  Britain  as  their  Imperial  State, — but  led,  by  an  in- 
evitable tendency,  directly  to  independence,  as  must 
every  argument  based  on  the  proposition  that  communi- 
ties which  Nature  has  made  dependencies  of  a  state  are 
not  dependencies,  but  integral  parts  of  its  body  and 
personality. 

Otis's  pamphlet  was  referred  to  with  approval  in  a  re- 
monstrance against  the  Stamp  Act  sent  by  the  Massa- 
chusetts Legislature  to  the  Board  of  Trade  in  1765,  and 
produced  much  ill-feeling  in  England.  It  was  one  thing 
to  claim  that  the  powers  of  Parliament  were  conditioned 
and  limited  in  the  dependencies  because  the  powers  of 
Great  Britain  as  the  Imperial  State  over  its  dependencies 
were  conditioned  and  limited  and  the  powers  of  Parlia- 
ment were  only  those  of  the  Imperial  State,  and  quite 


The  Stamp  Act  Congress,  1765       153 

another  to  say  that  the  powers  of  Parliament  were  in  all 
cases  conditioned  and  limited.  The  first  position  raised 
the  question  of  the  political  personality  of  the  Colonies 
and  their  relationship  as  political  persons  to  the  State  of 
Great  Britain ;  the  other  attacked  the  Constitution  of  the 
State  of  Great  Britain. 

Daniel  Dulany,  of  Maryland,  in  his  Considerations  on 
the  Propriety  of  Imposing  Taxes  on  the  British  Colonies, 
published  in  1765,  made  a  decided  advance  toward  the 
solution  of  the  problem  of  constitutional  dependency. 
Taking  as  fundamental  the  proposition  that  Great  Britain 
was  the  Imperial  State,  to  which  the  Colonies  were  con- 
stitutionally related  as  political  persons,  or  States,  he 
endeavored  to  define  the  character  and  extent  of  the 
power  of  Parliament  in  the  Empire — or,  what  is  the  same 
thing,  of  the  power  of  the  Imperial  State,  acting  through 
Parliament.  He  was  the  first  to  describe  the  power  of  the 
Imperial  State  as  a  power  of  "superintendence,"  that  is, 
a  power  limited  by  the  necessity  of  its  interference  in 
each  particular  case  as  it  arose.      He  said: 

The  Colonies  are  dependent  upon  Great  Britain,  and  the 
supreme  authority  vested  in  the  King,  Lords  and  Commons 
may  justly  be  exercised  to  secure  or  preserve  their  depen- 
dence, whenever  necessary  for  that  purpose.  This  authority 
results  from,  and  is  implied  in  the  idea  of  the  relation  sub- 
sisting between  England  and  her  Colonies;  for  considering  the 
nature  of  human  affections,  the  inferior  is  not  to  be  trusted 
with  providing  regulations,  to  prevent  his  rising  to  an  equality 
with  his  superior.  But,  though  the  right  of  the  superior  to 
use  the  proper  means  for  preserving  the  subordination  of  his 
inferior  is  admitted,  yet  it  does  not  necessarily  follow  that  he 
has  a  right  to  seize  the  property  of  his  inferior  when  he 
pleases,  or  to  command  him  in  everything,  since,  in  the  de- 
grees of  it,  there  may  very  well  exist  a  dependence  and  in- 
feriority, without  absolute  vassalage  and  slavery.  In  what  the 
superior  may  rightfully  control,  or  compel,  and  in  what  the 


154  The  Administration  of  Dependencies 

inferior  ought  to  be  at  liberty  to  act  without  control  or 
compulsion,  depends  upon  the  nature  of  the  dependence  and 
the  degree  of  the  subordination;  and  these  being  ascertained, 
the  measure  of  obedience  and  submission  and  the  extent  of  the 
authority  and  superintendence  will  be  settled. 

May  not  then  the  line  be  distinctly  and  justly  drawn  be- 
tween such  acts  as  are  necessary  or  proper  for  preserving  or 
securing  the  dependence  of  the  Colonies,  and  such  as  are  not 
necessary  or  proper  for  that  very  important  purpose  ? 

When  credit  comes  to  be  given  to  those  great  men  who 
were  responsible  for  the  clause  in  the  Constitution  of  the 
United  States  relating  to  the  government  of  depen- 
dencies, Dulany  must  receive  his  share  of  honor  for 
having  suggested  the  principle  which  underlies  the  phrase 
**  and  make  all  needful  rules  and  regulations." 

In  1765,  Stephen  Hopkins,  of  Rhode  Island,  a  man  of 
great  prominence  in  that  Colony,  who  had  filled  its 
highest  offices  and  had  been  one  of  its  delegates  to  the 
Albany  Congress  of  1754,  in  his  pamphlet  The  Grievances 
of  the  American  Colotties  Candidly  Examined,  supple- 
mented the  suggestion  of  Dulany  that  the  power  of 
Parliament  in  the  Empire  was  limited  by  the  necessity 
of  its  interference  in  each  particular  case,  by  suggesting 
that  its  power  was  also  conditional  upon  an  expert  in- 
vestigation as  a  preliminary  to  all  its  action.      He  said : 

Although  each  of  the  Colonies  hath  a  Legislature  within 
itself,  to  take  care  of  its  interests  and  provide  for  its  peace 
and  internal  government,  yet  there  are  many  things  of  a  more 
general  nature,  quite  out  of  the  reach  of  these  particular  Legis- 
latures, which  it  is  necessary  should  be  regulated,  ordered  and 
governed.  One  of  this  kind  is,  the  commerce  of  the  whole 
British  Empire,  taken  collectively,  and  that  of  each  Kingdom 
and  Colony  in  it,  as  it  makes  a  part  of  that  whole.  Indeed, 
everything  that  concerns  the  proper  interest  and  fit  govern- 


The  Stamp  Act  Congress,  1765       155 

ment  of  the  whole  Commonwealth,  of  keeping  the  peace,  and 
subordination  of  all  the  parts  towards  the  whole,  and  one 
among  another,  must  be  considered  in  this  light.  Amongst 
these  general  concerns,  perhaps  money  and  paper  credit,  those 
grand  instruments  of  all  commerce,  will  be  found  also  to  have  a 
place.  These,  with  all  other  matters  of  a  general  nature,  it  is 
absolutely  necessary  should  have  a  general  power  to  direct 
them  ;  some  supreme  and  overruling  authority,  with  power  to 
make  laws  and  form  regulations  for  the  good  of  all,  and  to 
compel  their  execution  and  observation.  It  being  necessary 
some  such  general  power  should  exist  somewhere,  every  man  of 
the  least  knowledge  of  the  British  Constitution  will  be  naturally 
led  to  look  for  and  find  it  in  the  Parliament  of  Great  Britain. 
That  grand  and  august  legislative  body  must  from  the  nature 
of  their  authority  and  the  necessity  of  the  thing,  be  justly 
vested  with  this  power.  Hence  it  becomes  the  indispensable 
duty  of  every  good  and  loyal  subject,  cheerfully  to  obey  and 
patiently  submit  to  all  the  acts,  laws,  orders  and  regulations 
that  may  be  made  and  passed  by  Parliament,  for  directing 
and  governing  all  these  general  matters.  • 

Here  it  may  be  urged  by  many  and,  indeed,  with  great  ap- 
pearance of  reason,  that  the  equity,  justice  and  beneficence  of 
the  British  Constitution  will  require  that  the  separate  King- 
doms and  distinct  Colonies,  who  are  to  obey  and  be  governed 
by  these  general  laws  and  regulations,  ought  to  be  represented, 
some  way  or  other,  in  Parliament,  at  least  whilst  these  matters 
are  under  consideration.  Whether  the  Colonies  will  ever  be 
admitted  to  have  representation  in  Parliament — whether  it  be 
consistent  with  their  distant  and  dependent  state — and 
whether,  if  it  were  admitted,  it  would  be  to  their  advantage — 
are  questions  we  will  pass  by  ;  and  observe,  that  these 
Colonies  ought  in  justice,  and  for  the  very  evident  good  of  the 
whole  Commonwealth,  to  have  notice  of  every  new  measure 
about  to  be  passed,  by  which  their  rights,  liberties  or  interests 
may  be  affected.  They  ought  to  have  such  notice  that  they 
may  appear  and  be  heard  by  their  Agents,  by  counsel,  or  written 
representation,  or  by  some  other  equitable  and  effectual  way. 

The  Colonies  are  at  so  great  a  distance  from  England  that 


156  The  Administration  of  Dependencies 

the  members  of  Parliament  can  generally  have  but  little 
knowledge  of  their  business  connections  and  interests,  but 
what  is  gained  from  people  who  have  been  there  ;  the  most  of 
these  have  so  slight  a  knowledge  themselves  that  the  informa- 
tions they  can  give  are  very  little  to  be  depended  on,  though 
they  may  pretend  to  determine  with  confidence  on  matters  far 
above  their  reach.  All  such  informations  are  too  uncertain  to 
be  depended  on  in  the  transacting  of  business  of  so  much 
consequence,  and  in  which  the  interests  of  two  millions  of  free 
people  are  so  deeply  concerned.  There  is  no  kind  of  incon- 
venience or  mischief  can  arise  from  the  Colonies  having  such 
notice  and  being  heard  in  the  manner  above  mentioned  ;  but 
on  the  contrary,  very  great  mischiefs  have  already  happened 
to  the  Colonies,  and  always  must  be  expected,  if  they  are  not 
heard  before  things  of  such  importance  are  determined  con- 
cerning them. 

Had  the  Colonies  been  fully  heard,  before  the  late  Act  had 
been  passed,  no  reasonable  man  can  suppose  it  ever  would 
have  passed  at  all  in  the  manner  it  now  stands.  For  what 
good  reason  can  possibly  be  given  for  making  a  law  to  cramp 
the  trade  and  ruin  the  interest  of  many  of  the  Colonies,  and 
at  the  same  time  lessen  in  a  prodigious  manner  the  consump- 
tion of  the  British  manufactures  in  them  ? 

To  Hopkins,  therefore,  must  be  given  the  credit  for 
the  suggestion  of  the  principle  which  underlies  the  ex- 
pression "to  dispose  of  "  in  the  clause  of  the  Constitution 
of  the  United  States  relating  to  the  administration  of 
dependencies. 

The  second  proposition  of  the  British  Government — 
that  it  was  unjust  to  Great  Britain,  and  unfair  on  the  part 
of  the  Colonies,  that  Great  Britain  should  expend  the 
money  for  the  common  defence  and  welfare  and  receive 
nothing  for  so  doing  or  only  so  much  as  the  Colonies 
chose  voluntarily  to  contribute — was  answered  by  John 
Dickinson,  of  Philadelphia,  the  leading  lawyer  and 
statesman  of  Pennsylvania,   in  a  pamphlet  published  in 


The  Stamp  Act  Congress,  1765       157 

1765,  entitled  The  Late  Regulations  Respecting  the  British 
Colonies  on  the  Continent  of  America.  In  this  pamphlet,  he 
discussed  the  whole  economic  situation  as  between  Great 
Britain  and  the  American  Colonies,  and  showed  that  the 
Colonies  had,  by  the  mercantile  restrictions  under  which 
they  had  been  placed,  been  made  to  contribute  to  the 
wealth  of  Great  Britain  many  times  more  than  Great 
Britain  had  ever  expended  for  their  benefit  in  its  admin- 
istration of  the  British  Empire,  so  that  the  proposition 
for  taking  money  by  taxation  in  addition  to  the  wealth 
which  was  taken  from  them  and  the  money  which  was 
drained  from  them  and  transferred  to  Great  Britain  under 
the  existing  economic  conditions,  was  so  far  from  being 
justifiable  as  a  repayment  by  the  Colonies  for  money 
expended  by  it  for  them,  that  it  was  really  an  adding  to 
the  debt  which  Great  Britain  already  owed  to  them.  Of 
course,  this  argument  related  merely  to  the  particular 
situation  then  existing,  and  while  it  made  a  great  im- 
pression, it  plainly  did  not  cover  every  kind  of  economic 
situation  which  might  exist  between  an  Imperial  State 
and  its  dependencies,  and  required  some  general  rule  to 
supplement  it. 

This  general  rule  Dickinson  proceeded  to  lay  down,  in 
the  resolutions  adopted  by  the  Pennsylvania  Legislature, 
September  21,  1765,  which  were  drafted  by  him,  by 
making  a  distinction  between  internal  and  external  taxes, 
— internal  taxes  being,  according  to  his  view,  within  the 
exclusive  jurisdiction  of  the  Colonial  Governments,  and 
external  taxes  exclusively  within  the  jurisdiction  of  the 
British  Government,  acting  as  the  Imperial  Government. 
The  second  resolution  (which  followed  his  draft  verbatim), 
read: 

Resolved:  That  in  the  opinion  of  this  House,  it  is  in- 
separably essential  to  a  free  constitution  of  government  that 
all  internal  taxes  be  levied  upon  the  people  with  their  consent. 


158  The  Administration  of  Dependencies 

Of  course,  if  Great  Britain,  as  the  Imperial  State,  had 
the  exclusive  power  of  external  taxation,  it  followed,  on 
the  principle  that  the  greater  includes  the  less,  that  it 
had  power  to  enact  all  other  kinds  of  legislation  relating 
to  the  external  affairs  of  the  Colonies,  and  to  represent 
them  in  their  external  relations. 

When  the  Stamp  Act  Congress  met  in  New  York  on 
October  7,  1765,  to  consider  the  measures  to  be  taken  in 
opposition  to  the  Stamp  Act,  which,  though  passed  on 
March  22,  1765,  was,  by  its  terms,  not  to  go  into  effect  un- 
til November  i,  of  that  year,  the  thought  of  the  country 
may  be  thus  summarized  :  Otis,  in  Massachusetts,  denied 
that  Great  Britain  was  the  Imperial  State,  and  sought  to 
remedy  the  existing  evils  by  changing  the  character  of 
Parliament  to  that  of  a  constitutionally  conditioned  and 
limited  legislature,  both  in  Great  Britain  and  in  the  Colo- 
nies. This  would  have  meant  a  revolution  in  Great 
Britain.  In  Rhode  Island,  Hopkins  had  recognized  that 
Great  Britain  was  the  Imperial  State  and,  without  con- 
sidering whether  its  powers  were  limited  or  not,  had 
claimed  that  they  were  conditional,  so  that  the  Colonies 
were  entitled  to  have  these  powers  exercised  by  an  ex- 
pert tribunal  acting  on  principles  of  justice,  in  which  the 
Colonies  could  be  heard  by  their  diplomatic  agents,  be- 
fore any  legislation  affecting  them  became  final.  In 
Maryland,  Dulany  had  recognized  also  that  Great  Britain 
was  the  Imperial  State,  and  had  advanced  the  proposition 
that  its  powers  were  conditioned  and  limited  so  that  it 
could  exercise  only  such  power  as  was  necessary  and 
proper  for  securing  the  dependence  of  the  Colonies,  on 
principles  of  justice  and  liberty.  In  Pennsylvania,  Dick- 
inson, also  recognizing  that  Great  Britain  was  the  Imperial 
State,  had  taken  the  position  that  it  had,  as  such,  the 
power  to  legislate  concerning  the  external  affairs  of  the 
Colonies,  and  to  represent  them  in  the  management  of 
these  affairs. 


The  Stamp  Act  Congress,  1765       159 

The  resolutions  adopted  by  the  Congress  on  October 
19,  1765,  will  be  found,  on  careful  examination,  to  be 
divisible  into  five  parts,  and  to  contain, — first,  a  state- 
ment of  the  character  of  the  political  relationship  be- 
tween Great  Britain  and  the  Colonies,  in  which  Great 
Britain  is  recognized  as  the  Imperial  State  and  the  Colo- 
nies as  its  dependencies;  second,  a  statement  of  the 
sphere  of  jurisdiction  of  Great  Britain  and  the  Colonies 
respectively,  under  the  existing  Imperial  Constitution; 
third,  a  statement  of  the  rights  of  the  individual  inhabi- 
tants of  the  Colonies  against  the  Imperial  and  Colonial 
Governments  under  the  existing  Imperial  Constitution ; 
fourth,  a  statement  of  the  violations  by  Great  Britain  of 
the  constitutional  rights  of  the  Colonies  as  political  per- 
sons by  intrusion  of  the  Imperial  State  into  the  sphere 
of  jurisdiction  of  the  Colonies  and  by  violation  of  the 
constitutional  rights  of  individuals;  and  fifth,  a  statement 
of  the  violations  by  Great  Britain  of  the  constitutional 
rights  of  the  Colonies,  by  enacting  laws  which,  though 
within  the  sphere  of  jurisdiction  of  Great  Britain,  were 
not  according  to  the  principles  of  justice,  considering  the 
Colonies  as  political  persons,  or  States,  entitled  to  just  and 
fair  treatment  by  the  Imperial  State  as  component  parts 
of  its  Empire. 

The  first  part  of  the  resolutions — that  containing  a 
statement  of  the  character  of  the  political  relationship 
between  Great  Britain  and  the  Colonies — was  contained 
in  the  first  resolution,  which  read: 

I.  That  his  Majesty's  subjects  in  these  Colonies  owe  the 
same  allegiance  to  the  Crown  of  Great  Britain  that  is  owing 
from  his  subjects  born  within  the  Realm,  and  all  due  subordi- 
nation to  that  August  Body,  the  Parliament  of  Great  Britain. 

This  resolution  seems  to  be  in  part  taken  from  the  de- 
cision in  Calvin's  Case,  in  which  it  was  held  by  all  the 


i6o  The  Administration  of  Dependencies 

high  judges  of  England  that  allegiance  was  to  the  person 
of  the  King  and  was  due  equally  from  the  inhabitants  of 
the  Realm  and  the  inhabitants  of  the  dependencies,  and 
in  part  from  the  constitutional  settlement  made  between 
the  Commonwealth  of  England  and  Virginia  by  the 
Articles  of  Surrender  of  165 1,  in  which  it  was  agreed 
that  Virginia  and  all  its  inhabitants  should  "  be  and 
remain  in  due  obedience  and  subjection  to  the  Common- 
wealth of  England  according  to  the  laws  there  estab- 
lished," which,  as  has  before  been  noticed,  left  the  whole 
question  of  the  character  and  extent  of  the  obedience  and 
subjection  to  be  determined  according  to  what  one  or 
both  the  parties,  or  some  tribunal,  considered  to  be 
"due  "  and  proper  under  the  circumstances. 

Dickinson  had  made  the  original  draft  of  these  resolu- 
tions, and  the  subject-matter  of  this  resolution  of  the 
Congress  had  been  covered  by  the  first  two  resolutions  of 
his  draft,  which  read  : 

1.  That  his  Majesty's  subjects  in  these  Colonies  owe  the 
same  allegiance  to  the  Crown  of  Great  Britain,  that  is  due 
from  his  subjects  born  within  the  Realm. 

2.  That  all  Acts  of  Parliament,  not  inconsistent  with  the 
principles  of  freedom,  are  obligatory  on  the  colonists. 

According  to  the  theory  of  Dickinson's  original  reso- 
lutions, all  Acts  of  Parliament  were  to  be  judged  by  cer- 
tain principles  of  government,  assumed  to  be  capable  of 
scientific  determination,  and,  if  found  to  be  inconsistent 
with  such  principles,  were  to  be  annulled.  It  left  it  un- 
certain by  what  party — Great  Britain,  the  Colonies,  or  a 
third  party  or  tribunal — the  adjudication  should  be  made. 
The  resolution  in  its  final  form,  in  claiming  that  the  in- 
habitants of  the  Colonies  owed  **  all  due  subordination  to 
Parliament,"  proceeded  upon  exactly  the  same  theory, ' 
but  was  more  diplomatic,  respectful,  and  proper,  since  it 


The  Stamp  Act  Congress,  1765       i6i 

contained  the  implication  that  Parliament  was  endeavor- 
ing in  all  cases  to  act  on  principles  of  freedom  judicially 
and  expertly  ascertained,  and  that  hence  its  Acts  were 
presumptively  binding. 

The  resolutions,  both  in  their  original  and  final  form, 
plainly  and  definitely  claimed  that  the  Colonies  were  not 
integral  parts  of  the  Realm.  In  both  the  distinction  was 
carefully  drawn  between  "the  Colonies"  and  "the 
Realm. "  The  colonists  were  described  as ' *  his  Majesty's 
subjects  in  these  Colonies,"  and  were  distinguished  from 
"  his  Majesty's  subjects  born  within  the  Realm  ";  and 
the  position  taken  was  that,  though  they  all  owed  "the 
same  allegiance"  to  the  King,  "  his  Majesty's  subjects 
in  these  Colonies  "  owed  obedience  to  such  Acts  of  Par- 
liament only  as  were  "  not  inconsistent  with  freedom," 
or,  in  other  words,  "  owed  all  due  subordination  to  Parlia- 
ment. " 

The  main  reason  advanced  in  the  resolutions  against 
Parliamentary  taxation  therefore  was,  that  the  relations 
of  the  Colonies  were,  in  the  first  instance,  relations  be- 
tween them  and  the  State  of  Great  Britain,  and  that  the 
powers  of  the  Crown  and  Parliament  over  them  were 
such  and  such  only  as  were  necessary  to  the  mainten- 
ance, at  the  highest  point  of  efficiency,  of  this  political 
connection  between  the  Colonies  as  political  organisms 
and  Great  Britain  as  another  political  organism  acting 
as  protector  and  governor. 

Indeed  it  may  be  doubted  whether  this  was  not,  when 
the  resolutions  are  examined,  the  whole  basis  on  which 
they  rested,  because  the  resolutions  absolutely  repudiated 
any  possibility  of  a  settlement  on  the  basis  of  the  Colo- 
nies being  represented  in  Parliament,  on  the  ground  that 
such  representation  was  contrary  to  the  nature  of  things 
and  hence  out  of  the  question.  This  repudiation  was 
contained  in  the  fourth  resolution,  which  was  adopted 
verbatun  from  Dickinson's  draft,  and  which  read: 


i62  The  Administration  of  Dependencies 

IV.  That  the  people  of  these  Colonies  are  not,  and  from 
local  circumstances  cannot  be,  represented  in  the  House  of  Com- 
mons of  Great  Britain. 


This  was  no  more  than  to  say  that  the  Colonies  were 
not,  and  from  local  circumstances  could  not  be,  parts  of 
the  Realm,  but  that  they  were,  and  from  local  circum- 
stances must  always  be,  so  long  as  they  were  constitu- 
tionally related  to  Great  Britain,  parts  of  the  Empire  of 
that  State. 

In  the  second  part  of  the  resolutions — the  part  relating 
to  the  respective  spheres  of  jurisdiction  of  the  Imperial 
and  the  Colonial  Governments — it  is  undoubtedly  true 
that  the  Congress  made  a  distinction  between  legislation 
for  the  purposes  of  levying  and  collecting  taxes  and 
legislation  for  all  other  purposes,  which,  if  it  had  stood 
alone,  would  have  laid  them  open  to  the  claim  that  they 
had  admitted  that  other  kinds  of  legislation  except  legis- 
lation for  taxing  purposes  might  constitutionally  be 
enacted  by  Great  Britain,  as  the  Imperial  State,  without 
the  consent  of  the  Colonies. 

The  resolutions  of  the  Stamp  Act  Congress  on  this 
subject  were  as  follows: 

III.  That  it  is  inseparably  essential  to  the  freedom  of  a 
people,  and  the  undoubted  right  of  Englishmen,  that  no 
taxes  be  imposed  on  them  but  with  their  own  consent,  given 
personally,  or  by  their  representatives. 

V,  That  the  only  representatives  of  the  people  of  these 
Colonies  are  persons  chosen  therein  by  themselves,  and  that 
no  taxes  ever  have  been,  o'r  can  be  constitutionally  imposed 
on  them,  but  by  their  respective  Legislatures. 

VI.  That  all  supplies  to  the  Crown  being  free  gifts  of  the 
people,  it  is  unreasonable  and  inconsistent  with  the  principles 
and  spirit  of  the  British  Constitution,  for  the  people  of  Great 
Britain  to  grant  to  his  Majesty  the  property  of  the  colonists. 


The  Stamp  Act  Congress,  1765       163 

As,  however,  the  Congress,  under  the  lead  of  Dickin- 
son, had  placed  their  claims  on  the  wide  ground  that 
their  subordination  to  Great  Britain  was  "due  "  subordi- 
nation, in  which  qualification  it  was  necessarily  implied 
that  they  had  at  least  the  right  to  be  heard  concerning 
the  justice  and  propriety  of  any  legislation  affecting  them 
before  it  became  final,  these  resolutions  were  really  a 
specification  under  the  general  claims  contained  in  the 
first,  second,  and  fourth  resolutions. 

No  distinction  was  made  by  the  Congress  in  their  reso- 
lutions, based  on  the  purposes  for  which  the  taxes  were 
to  be  levied.  They  placed  in  the  same  category  taxation 
for  local  administration  and  taxation  for  the  defence  and 
welfare  of  the  Empire  of  which  they  admitted  themselves 
to  be  subordinate  parts.  Great  Britain  had,  however, 
raised  no  constitutional  question  of  this  sort,  because 
though,  in  the  Tariff  Act  of  1764  and  the  Stamp  Act,  it 
had  declared  that  the  proceeds  of  the  taxes  thus  imposed 
should  be  kept  apart  as  funds  of  the  Empire,  to  be  used 
for  the  Imperial  defence  in  the  Colonies,  it  had  not  based 
its  right  to  tax  the  Colonies  on  this  ground,  but  had 
simply  left  matters  so  that  the  proceeds  of  the  taxes 
should  be  used  for  the  Imperial  defence  in  the  Colonies 
until  Parliament  should  will  otherwise. 

That  this  provision  was  absolutely  ignored  by  the  Con- 
gress was  doubtless  due  principally  to  the  fact  that  they 
did  not  consider  that  they  were  called  upon  to  answer 
a  proposition  of  Parliament  which  merely  stated  its  in- 
tentions regarding  the  exercise  of  power.  Still,  even  if 
Parliament  had  in  these  statutes  declared  its  power  to 
tax  to  be  limited,  the  words  used  were  objectionable. 
The  proceeds  were  "to  be  from  time  to  time  disposed  of 
by  Parliament  towards  defraying  the  necessary  expenses 
of  defending,  protecting  and  securing  the  said  Colonies 
and  Plantations."  Had  it  been  proposed  by  Great 
Britain  to  levy  taxes  for  the  defence  and  welfare  of  the 


1 64  The  Administration  of  Dependencies 

Empire  in  the  Colonies,  attention  might  have  been  called 
to  the  considerations  which  differentiate  such  taxation 
from  all  other  kinds,  and  the  discussion  might  have 
turned  on  the  proper  methods  of  taxation  for  the  Im- 
perial defence  and  welfare.  At  that  time,  however,  the 
conception  of  the  modern  Empire,  in  which  a  state  is  the 
constitutional  Emperor,  and  other  states  the  constitu- 
tional subjects,  was  perhaps  too  dim  to  enable  either 
party  to  the  discussion  to  perceive  any  distinction  be- 
tween the  defence,  by  the  State  of  Great  Britain  of  its 
Empire,  in  that  part  of  it  called  the  American  Colonies, 
and  the  defence,  by  the  Parliament  of  Great  Britain,  of 
the  American  Colonies,  as  appendages  or  appurtenances 
of  the  Realm  of  Great  Britain. 

The  third  part  of  the  resolutions — that  relating  to  the 
constitutional  rights  of  the  individual  inhabitants  of  the 
Colonies  against  the  Imperial  and  Colonial  Governments 
— was  contained  in  the  first,  second,  seventh,  and  thir- 
teenth resolutions,  which  read : 

I.  That  his  Majesty's  subjects  in  these  Colonies  owe  .  .  . 
all  due  subordination  to  that  August  Body,  the  Parliament  of 
Great  Britain. 

II.  That  his  Majesty's  liege  subjects  in  these  Colonies  are 
entitled  to  all  the  inherent  rights  and  liberties  of  his  natural- 
born  subjects  within  the  Kingdom  of  Great  Britain. 

VII.  That  trial  by  jury  is  the  inherent  and  invaluable  right 
of  every  British  subject  in  these  Colonies. 

XIII.  That  it  is  the  right  of  the  British  subjects  in  these 
Colonies  to  petition  the  King,  or  either  House  of  Parliament. 

The  fourth  part  of  the  resolutions — that  which  set  out 
the  grievances  which  were  unconstitutional  because  in- 
vasions of  the  sphere  of  jurisdiction  of  the  Colonies  and 
of  the  constitutional  rights  of  the  individual  inhabitants 
of  the  Colonies  to  life,  liberty,  and  property,  as  distin- 
guished from  those  which  were  unconstitutional  because 


The  Stamp  Act  Congress,  1765       165 

oppressive  and  injurious  in  their  operation — was  as  fol- 
lows: 

VIII.  That  the  late  Act  of  Parliament,  entitled  "An  Act 
for  Granting  and  Applying  Certain  Stamp  Duties,  and  Other 
Duties,  in  the  British  Colonies  and  Plantations  in  America," 
&c.,  by  imposing  taxes  on  the  inhabitants  of  these  Colonies, 
and  the  said  Act,  and  several  other  Acts,  by  extending  the 
jurisdiction  of  the  Courts  of  Admiralty  beyond  its  ancient 
limits,  have  a  manifest  tendency  to  subvert  the  rights  and 
liberties  of  the  colonists. 

The  "extension  of  the  jurisdiction  of  the  Courts  of 
Admiralty  beyond  the  ancient  limits  of  the  Admiralty," 
was  the  extension  of  the  system  of  trial  without  a  jury 
to  cases  which,  in  their  nature,  arose  on  the  land,  since 
duties  cannot  properly  be  said  to  attach  to  goods  im- 
ported until  they  are  landed  and  the  importation  is 
complete. 

The  fifth  part  of  the  resolutions — that  relating  to  vio- 
lations by  Great  Britain  of  the  constitutional  rights  of  the 
Colonies  and  their  inhabitants  by  enacting  tariff  laws 
which,  though  within  the  sphere  of  jurisdiction  of  Great 
Britain,  were  not  based  on  just  and  scientific  principles, 
but  were  ill-considered,  unjust,  and  oppressive  to  the 
Colonies  as  political  persons  and  to  their  inhabitants — 
was  contained  in  the  ninth,  tenth,  eleventh,  and  twelfth 
resolutions,  which  were: 

IX.  That  the  duties  imposed  by  the  several  late  Acts  of 
Parliament,  from  the  peculiar  circumstances  of  these  Colonies, 
will  be  extremely  burthensome  and  grievous;  and  from  the 
scarcity  of  specie,  the  payment  of  them  absolutely  imprac- 
ticable. 

X.  That  as  the  profits  of  the  trade  of  these  Colonies  ulti- 
mately center  in  Great  Britain,  to  pay  for  the  manufactures 
which  they  are  obliged  to  take  from  thence,  they  eventually 


i66  The  Administration  of  Dependencies 

contribute  very  largely  to  all  supplies  granted  there  to  the 
Crown. 

XI.  That  the  restrictions  imposed  by  several  late  Acts  of 
Parliament  on  the  trade  of  these  Colonies  will  render  them 
unable  to  purchase  the  manufactures  of  Great  Britain. 

XII.  That  the  increase,  prosperity  and  happiness  of  these 
Colonies  depend  on  the  full  and  free  enjoyment  of  their  rights 
and  liberties,  and  an  intercourse  with  Great  Britain  mutually 
affectionate  and  advantageous. 

There  was  contained  in  these  resolutions  a  plain  sug- 
gestion that  these  matters  of  tariff  should  be  adjusted  by 
diplomatic  agreement  between  Great  Britain  and  the 
Colonies,  which  could  have  been  accomplished  only  by 
the  recognition  of  the  Colonial  Agents  as  diplomatic 
representatives  of  the  Colonies.  This  would  have  neces- 
sitated that  they  should  be  received  at  Court  and  should 
be  allowed  to  negotiate  terms  with  the  King's  Secretary 
or  his  Secretarial  Board  appointed  for  the  purpose,  sub- 
ject to  the  final  determination  of  the  King,  made  after 
advising  with  his  Secretary  or  Secretarial  Board. 

In  the  conclusion  of  the  resolution  the  Congress  recog- 
nized again  the  allegiance  of  the  colonists  to  the  person 
of  the  King  and  the  connection  of  the  Colonies,  as  po- 
litical persons,  with  Great  Britain  as  the  Imperial  State, 
in  the  following  language : 

Lastly,  it  is  the  indispensable  duty  of  these  Colonies  to  the 
best  of  Sovereigns,  to  the  Mother-Country,  and  to  themselves, 
to  endeavor,  by  a  loyal  and  dutiful  address  to  his  Majesty  and 
humble  applications  to  both  Houses  of  Parliament,  to  procure 
the  repeal  of  the  Act  for  Granting  and  Applying  Certain  Stamp 
Duties,  and  of  all  clauses  of  any  other  Acts  of  Parliament, 
whereby  the  jurisdiction  of  the  Admiralty  is  extended  as 
aforesaid,  and  of  the  other  late  Acts  for  the  restriction  of 
American  commerce. 

The  Congress  said,  in  its  "Address  to  the  King  " : 


The  Stamp  Act  Congress,  1765       167 

Our  connection  with  the  British  Empire  we  esteem  our 
greatest  happiness  and  security,  and  humbly  conceive  it  may 
now  be  so  established  by  your  royal  wisdom,  as  to  endure  to 
the  latest  period  of  time. 

In  its  "  Address  to  the  House  of  Commons"  it  said: 

We  esteem  our  connections  with,  and  dependence  on  Great 
Britain  as  one  of  our  greatest  blessings,  and  apprehend  the 
latter  will  appear  to  be  sufficiently  secure,  when  it  is  con- 
sidered that  the  inhabitants  in  the  Colonies  have  the  most 
unbounded  affection  for  his  Majesty's  person,  family,  and 
Government,  as  well  as  for  the  Mother  Country,  and  that  their 
subordination  to  the  Parliament  is  universally  acknowledged. 

In  the  "Address  to  the  King,"  the  grievances  of  the 
Colonies  were  thus  stated : 

Our  subordinate  Legislatures  are  in  effect  rendered  useless 
by  the  late  Acts  of  Parliament  imposing  duties  and  taxes  on 
these  Colonies  and  extending  the  jurisdiction  of  the  Courts  of 
Admiralty  beyond  its  ancient  limits, — statutes  by  which  your 
Majesty's  Commons  in  Britain  undertake  absolutely  to  dispose 
of  the  property  of  their  fellow-subjects  in  America  without 
their  consent,  and  for  the  enforcing  whereof,  they  are  sub- 
jected to  the  determination  of  a  single  judge  in  a  Court  unre- 
strained by  those  wise  rules  of  the  common  law,  the  birthright 
of  Englishmen,  and  the  safeguard  of  their  persons  and  liberties. 

In  the  "Address  to  the  House  of  Commons,"  the 
Congress  adopted  the  ideas  of  Dulany,  Hopkins,  and 
Dickinson,  in  the  following  language : 

It  is  submitted  that  it  is  extremely  improbable  that  the  hon- 
orable House  of  Commons  should  at  all  times  be  thoroughly 
acquainted  with  our  condition,  and  all  facts  requisite  to  a  just 
and  equal  taxation  of  the  Colonies. 

It  is  also  humbly  submitted  whether  there  be  not  a  material 
distinction,  in  reason  and  sound  policy,  between  the  necessary 


1 68  The  Administration  of  Dependencies 

exercise  of  Parliamentary  jurisdiction  in  general  Acts,  and  the 
common  law,  and  the  regulations  of  trade  and  commerce 
through  the  whole  Empire,  and  the  exercise  of  that  jurisdiction 
by  taxing  the  Colonies. 

The  proposition  that  the  power  of  Parliament  in  the 
Empire  was  in  the  nature  of  things  different  from  its 
power  in  the  Realm,  being  only  such  as  was  necessary 
to  preserve,  in  an  orderly  manner,  the  Empire  exer- 
cised by  the  State  of  Great  Britain  over  the  Colonies, 
was  the  fundamental  proposition  on  which  all  the  resolu- 
tions of  the  Congress  rested.  Once  this  was  admitted, 
the  question  of  the  proper  terms  of  the  constitutional 
relationship  between  Great  Britain  and  the  Colonies 
resolved  itself  into  a  question  of  the  character  and  ex- 
tent of  the  power  which  Parliament  ought  to  exercise 
over  the  Colonies  on  principles  of  justice,  regardless  of 
the  character  and  extent  of  the  power  which  it  exercised 
in  the  Realm. 


CHAPTER    X 

PLANS   OF   SETTLEMENT,    1 765- 1 767 

SHORTLY  after  the  dissolution  of  the  Stamp  Act 
Congress,  Sir  Francis  Bernard,  who  was  then  the 
royal  Governor  of  Massachusetts,  in  letters  to 
friends  in  England  who  were  high  in  authority  as  mem- 
bers of  the  Board  of  Trade  and  the  Privy  Council,  made 
suggestions  concerning  the  course  which  he  thought  it 
necessary  for  Great  Britain,  as  the  Imperial  State,  to 
follow,  if  it  was  to  maintain  itself  at  the  head  of  the  Em- 
pire. These  letters  were  published  in  1774,  in  a  volume 
entitled  Select  Letters  on  Trade  and  Government  of 
America.  In  them,  he  proposed  that  the  British  Govern- 
ment should  call  together  a  Constitutional  Convention 
composed  of  delegates  from  Great  Britain  and  the  Colo- 
nies, to  frame  a  written  Constitution  for  the  parts  of  the 
Empire  situated  in  America  and  the  West  Indies,  which 
should  define  the  relationship  between  Great  Britain  and 
these  Colonies  (declaring  it  to  be  the  Imperial  State  and 
they  its  dependencies),  the  conditions  and  limitations 
upon  the  powers  of  the  Imperial  State  and  the  Colonies 
respectively,  and  the  rights  of  the  individuals  inhabiting 
in  the  Colonies  against  the  Imperial  and  Colonial  Govern- 
ments.    In  a  letter  of  November  23,  1765,  he  said: 

It  is  my  opinion,  that  all  the  political  evils  in  America  arise 
from  the  want  of  ascertaining  the  relations  between  Great 
Britain  and  the  American  Colonies.  Hence  it  is,  that  ideas 
of  that  relation  are  formed  in  Britain  and  America  so  very  re- 
pugnant and  contradictory  to  each  other.     In  Great  Britain, 

169 


170  The  Administration  of  Dependencies 

the  American  Governments  are  considered  as  corporations, 
empowered  to  make  by-laws,  existing  only  during  the  pleasure 
of  Parliament;  which  hath  never  yet  done  anything  to  confirm 
their  establishments,  and  hath  at  any  time  a  power  to  dissolve 
them.  In  America,  they  claim  (I  mean  in  the  public  papers) 
to  be  perfect  States,  no  other  wise  dependent  upon  Great 
Britain  than  by  having  the  same  King;  which,  having  com- 
plete Legislatures  within  themselves,  are  no  way  subject  to  that 
of  Great  Britain ;  which,  in  such  instances  as  it  has  heretofore 
exercised  a  legislative  power  over  them,  has  usurped  it.  In  a 
difference  so  wide,  who  shall  determine  ?  The  Parliament  of 
Great  Britain  ?  No,  say  the  Americans  (I  mean  the  violent 
of  them);  that  would  be  to  make  them  judges  in  their  own 
cause.  "Who  then  ?  The  King  ?  He  is  bound  by  Charters, 
or  Constitutions  equal  to  Charters,  and  cannot  declare  against 
his  own  grants.  So,  at  this  rate,  there  is  no  superior  tribunal 
to  determine  upon  the  rights  and  privileges  of  the  American 
Colonies. 

But  the  general  plea  of  the  Americans  against  the  Stamp 
Act  is,  that  they  are  not  represented  in  Parliament,  and  there- 
fore not  liable  to  be  taxed  by  it:  to  which  it  has  been  answered 
in  England,  that  they  are  virtually  represented  in  Parliament. 
Each  of  these  pleas  tends  to  expose  its  own  cause.  If  the 
Americans  rest  their  defence  upon  their  not  being  represented, 
it  is  in  the  power  of  Parliament,  by  admitting  representatives 
from  America,  to  take  away  all  pretence  of  their  not  being 
bound  by  its  Acts:  on  the  other  side,  if  the  notion  of  the 
Americans  being  virtually  represented  should  be  falsified  in 
fact,  the  plea  of  the  Americans  will  remain  in  its  full  force; 
whereas  the  right  of  the  Parliament  of  Great  Britain  to  make 
laws  for  the  American  Colonies  is  founded  upon  its  being  the 
Supreme  Imperial  Legislature,  to  which  all  members  of  the 
Empire,  whether  represented  or  not,  are  subject  in  all  matters 
and  things,  and  in  manner  and  form,  as  shall  be  judged  most 
convenient  for  the  whole. 

But  though  the  Parliament  of  Great  Britain  does  not  stand 
in  need  of  a  real  or  virtual  representation  to  ground  its 
authority  over  the  Colonies,  it  may  now  be  worth  considera- 


Plans  of  Settlement,  1 765-1 767       171 

tion,  whether  admitting  representatives  from  the  Colonies  may 
not  be  a  proper  expedient  for  the  present  exigencies. 

Two  years  ago,  a  proposal  of  this  kind  would  not  have  borne 
a  hearing:  but  so  much  is  America  altered  by  the  late  financial 
Acts,  that  a  new  system  of  policy,  and  of  a  more  refined  kind 
than  was  wanted  heretofore,  is  now  become  needful.  The 
patch- work  government  of  America  will  last  no  longer:  the 
necessity  of  a  Parliamentary  establishment  of  the  Governments 
of  America  upon  fixed  constitutional  principles,  is  brought  on 
with  a  precipitation  which  could  not  have  been  foreseen  but 
a  year  ago;  and  is  become  more  urgent,  by  the  very  inci- 
dents which  make  it  more  difficult.  The  circumstance  of  the 
Americans  justifying  their  disobedience  by  their  not  being 
represented,  points  out  a  method  to  enforce  their  obedience 
upon  their  own  principles.  Take  them  at  their  word;  let  them 
send  representatives  for  the  present  time,  and  for  the  present 
purposes;  thirty  for  the  Continent,  and  fifteen  for  the  Islands, 
would  be  sufficient.  In  this  Parliament,  the  Colonies  being 
actually  represented,  let  the  affairs  of  the  American  Govern- 
ments be  canvassed  to  the  bottom;  and  let  a  general,  uniform 
system  of  American  Governments  be  formed  and  established 
by  Act  of  Parliament,  by  which  the  Americans,  according  to 
their  own  principles,  will  be  bound;  and  let  the  relation  of 
America  to  Great  Britain  be  determined  and  ascertained  by 
solemn  Recognition:  so  that  the  rights  of  the  American  Gov- 
ernments and  their  subordination  to  that  of  Great  Britain,  may 
no  longer  be  a  subject  of  doubt  and  disputation.  When  this 
great  work  is  done,  the  American  representatives  may  be  dis- 
missed, and  left  to  attend  their  own  Legislatures,  which  will 
then  know  the  bounds  of  their  own  authority;  or  may  be  con- 
tinued, as  shall  be  most  advisable. 


The  civil  policy  of  America  is  composed  of  temporary  ex- 
pedients, all  derived  from  the  Crown  only;  not  one  of  the 
American  Governments  has  that  sanction  which  none  of  them 
ought  to  be  without,  a  Parliamentary  establishment.  And, 
until  the  Parliament  shall  establish  the  American  Governments 


172  The  Administration  of  Dependencies 

upon  a  constitutional  bottom,  and  ascertain  the  limitations 
and  extensions  of  their  Legislatures,  it  must  be  expected  that 
the  Governments  will  be  continually  subject  to  disturbance, 
whenever  the  Americans  think  fit  to  complain  of  innovations 
upon,  and  infringements  of,  their  rights;  that  is,  whenever 
anything  is  required  of  them  which  they  don't  like. 

In  a  letter  of  December  14,  1765,  he  said: 

The  chief  arguments  of  the  Americans  against  their  being 
subject  to  Acts  of  Parliament  which  impose  inland  taxes  (and 
it  will  hold  equally  good  against  all  other  Acts  of  Parliament 
for  the  regulation  of  their  internal  policy)  is,  that  they  are  not 
represented  in  Parliament.  This  is  the  Palladium  of  their 
cause:  but  they  have  of  late  discovered,  that  this  is  a  danger- 
ous argument;  for  if  the  Parliament  should  allow  them  to  send 
representatives,  they  are  concluded,  and  must  then  be  bound 
by  Acts  of  Parliament,  according  to  their  own  principles. 
Therefore  of  late,  when  they  use  this  argument,  they  add,  that 
such  a  representation  is  impracticable.  Now  it  certainly  is 
not  strictly  impracticable;  though  it  may  be  difficult,  inex- 
pedient or  improper.  But  it  seems  to  me,  that  it  is  both  ex- 
pedient and  proper  for  the  present  time  and  purposes.  The 
Parliament  must  now  interpose  for  regulating  the  policy  of 
America,  or  else  all  things  will  run  into  confusion.  But  if 
they  proceed  to  such  regulations,  whilst  the  Americans  dispute 
their  authority,  what  can  be  expected  but  an  enforced  obe- 
dience, whilst  the  seeds  of  opposition  lie  ready  to  shoot  up  in 
proper  season  ? — whereas,  if  the  Parliament  first  removes  the 
pretence  for  the  Colonies  not  being  subject  to  it,  there  can  be 
no  pretence  for  their  disobedience  afterwards. 

Besides,  if  the  Parliament  should  undertake  so  important  a 
work  as  the  new  modelling  of  the  Governments  in  America, 
which  seems  to  me  to  be  at  this  time  unavoidable,  it  appears 
reasonable  that  the  Colonies  should  have  their  deputies  in  the 
House,  both  to  hear  and  to  speak  upon  the  subject  relating  to 
them.  If  they  were  allowed  this  liberty,  (even  though  they  did 
not  accept  it,  as  probably  some  of  them  would  not),  they  could 
not  complain  of  their  rights  being  disposed  of  without  their 


Plans  of  Settlement,  1 765-1 767       173 

being  heard,  as  they  do  now.  For  a  liberty  of  sending  repre- 
sentatives would  conclude  them,  whether  they  sent  them  or 
not.  And  this  leads  me  to  say  that  I  do  not  propose  Ameri- 
can representatives  as  a  perpetual  establishment,  but  only  as  a 
temporary  ordinance.  When  the  business  is  done,  the  Gov- 
ernments new  modelled,  their  Legislatures  established  upon 
constitutional  principles  and  a  permanent  bottom,  and  a 
Recognition  of  the  supremacy  of  the  Parliament  of  Great 
Britain  passed  by  the  new  Legislatures  as  a  first  and  conditional 
Act,  there  will  be  no  longer  occasion  for  American  represen- 
tatives; they  may  return  and  serve  in  their  own  Assemblies, 
which  then  may  be  as  separate  from  that  of  Great  Britain  as 
that  of  Ireland. 

Bernard's  scheme  made  no  impression  either  in  Great 
Britain  or  the  Colonies.  Not  only  was  it  full  of  practical 
difficulties,  but  it  was  completely  overshadowed  by  the 
plan  of  settlement  advocated  by  William  Pitt  (after- 
wards Lord  Chatham)  during  the  debate  in  the  House  of 
Commons  on  January  14,  1766,  on  the  bill  for  the  repeal 
of  the  Stamp  Act.  In  his  speeches  on  that  occasion, 
Pitt  declared  himself  in  favor  of  a  great  constitutional 
settlement  on  the  basis  that  the  correctness  of  the  prin- 
ciple advanced  by  the  Americans,  that  they  could  not  be 
taxed  by  Parliament,  should  be  admitted  by  the  State  of 
Great  Britain,  in  consideration  that  the  Colonies  should 
admit  that  the  British  Parliament  had  complete  legisla- 
tive power  over  them,  whether  represented  therein  or 
not,  in  every  respect  save  that  of  taxation.  As  Pitt  then 
was,  and  for  many  years  had  been,  the  acknowledged 
leader  of  the  Whig  party,  and  the  greatest  statesman  in 
Great  Britain,  this  proposition,  to  which,  under  penalty 
of  loss  of  his  leadership,  he  had  practically  pledged  the 
whole  Whig  party  of  Great  Britain,  was  of  the  utmost 
consequence ;  and  all  discussion  was  immediately  focussed 
on  his  plan  of  settlement  and  the  points  made  by  him  in 
supporting  it. 


174  The  Administration  of  Dependencies 

In  his  first  speech  he  said : 

Taxation  is  no  part  of  the  governing  or  legislative  power. 
The  taxes  are  a  voluntary  gift  or  grant  of  the  Commons  alone. 
In  legislation,  the  three  Estates  of  the  Realm  are  alike  con- 
cerned, but  the  concurrence  of  the  Peers  and  the  Crown  to  a 
tax  is  only  necessary  to  close  with  the  forms  of  law.  The  gift 
and  grant  is  of  the  Commons  alone.  In  ancient  days,  the 
Crown,  the  Barons  and  the  Clergy  possessed  the  lands.  In 
those  days,  the  Barons  and  the  Clergy  gave  and  granted  to 
the  Crown.  They  gave  and  granted  what  was  their  own.  At 
present,  since  the  discovery  of  America,  and  other  circum- 
stances permitting,  the  Commons  are  become  the  proprietors 
of  the  land.  The  Crown  has  divested  itself  of  its  great  estates. 
The  Church  (God  bless  it!)  has  but  a  pittance.  The  property 
of  the  Lords,  compared  with  that  of  the  Commons,  is  as  a  drop 
of  water  in  the  ocean ;  and  this  House  represents  those  Com- 
mons, the  proprietors  of  the  lands;  and  those  proprietors 
virtually  represent  the  rest  of  the  inhabitants.  When,  there- 
fore, in  this  House,  we  give  and  grant,  we  give  and  grant  what 
is  our  own.  But  in  an  American  tax,  what  do  we  do?  We, 
your  Majesty's  Commons  of  Great  Britain,  give  and  grant  to 
your  Majesty,  what  ?  Our  own  property  ? — No,  we  give  and 
grant  to  your  Majesty  the  property  of  your  Majesty's  Com- 
mons in  America. 

The  distinction  between  legislation  and  taxation  is  neces- 
sary to  liberty.  The  Crown,  the  Peers,  are  equally  legislative 
powers  with  the  Commons.  If  taxation  be  a  part  of  simple 
legislation,  the  Crown,  the  Peers,  have  rights  in  taxation  as 
well  as  yourselves;  rights  which  they  will  claim,  which  they 
will  exercise,  whenever  the  principle  can  be  supported  by 
power. 

In  his  speech  in  reply  to  objections,  he  said : 

I  maintain  that  the  Parliament  has  a  right  to  bind,  to  re- 
strain America.  Our  legislative  power  over  the  Colonies  is 
sovereign  and  supreme.  When  it  ceases  to  be  sovereign  and 
supreme,  I  would  advise  every  gentleman  to  sell  his  lands  and 


Plans  of  Settlement,  1 765-1 767       175 

embark  for  that  country.  When  two  countries  are  connected 
together,  like  England  and  her  Colonies,  without  being  incor- 
porated, one  must  necessarily  govern;  the  greater  must  rule 
the  less,  but  so  rule  it  as  not  to  contradict  the  fundamental 
principles  that  are  common  to  both. 

If  the  gentleman  does  not  understand  the  difference  between 
internal  and  external  taxes,  I  cannot  help  it;  but  there  is  a 
plain  distinction  between  taxes  levied  for  the  purposes  of  rais- 
ing a  revenue,  and  duties  imposed  for  the  regulation  of  trade, 
for  the  accommodation  of  the  subject;  although  in  the  conse- 
quences, some  revenue  might  incidentally  arise  from  the 
latter.     .     .     . 

Upon  the  whole,  I  will  beg  leave  to  tell  the  House  what  is 
really  my  opinion.  It  is,  that  the  Stamp  Act  be  repealed 
absolutely,  totally  and  immediately;  that  the  reason  for  the 
repeal  be  assigned,  because  it  was  founded  on  an  erroneous 
principle.  At  the  same  time,  let  the  sovereign  authority  of 
this  country  over  the  Colonies  be  asserted  in  as  strong  terms 
as  can  be  devised,  and  be  made  to  extend  to  every  point  of 
legislation  whatsoever; — that  we  may  bind  their  trade,  confine 
their  manufactures,  and  exercise  every  power  whatsoever,  ex- 
cept that  of  taking  their  money  out  of  their  pockets  without 
their  consent. 

In  the  House  of  Lords,  Lord  Camden  (afterwards 
Lord  Chancellor),  during  the  debates  on  the  repeal  of  the 
Stamp  Act,  insisted  upon  the  distinction  between  taxa- 
tion and  other  kinds  of  governmental  power,  in  terms 
even  more  emphatic  than  those  used  by  Pitt. 

Dr.  Franklin,  the  Agent  of  the  Province  of  Pennsyl- 
vania, in  his  hearing  before  the  House  of  Commons  in 
February,  1766,  in  opposition  to  the  Stamp  Act,  follow- 
ing Pitt  in  the  idea  that  all  external  taxation  (that  is,  by 
customs  duties)  was  essentially  a  regulation  of  trade,  as- 
sured the  House  that  the  Colonies  only  objected  to  in- 
ternal taxation,  and  that  any  external  taxation  would 
be  entirely  satisfactory  to   them,  and  persisted  in  this 


176  The  Administration  of  Dependencies 

statement  even  when  members  of  the  House  pointed  out 
to  him  that  taxation  by  duties  was,  so  far  as  they  could 
see,  equally  objectionable  with  any  other  kind  of  taxation. 
When  the  Stamp  Act  was  repealed,  however, — on 
March  18,  1766, — Pitt's  advice  was  not  followed.  The 
preamble,  instead  of  stating  that  it  was  repealed  "  be- 
cause it  was  founded  on  an  erroneous  principle,"  de- 
clared that  the  repeal  was  due  to  the  conclusion  of 
Parliament  that  "the  continuance  of  the  said  Act  would 
be  attended  with  many  inconveniences  and  may  be  pro- 
ductive of  consequences  greatly  detrimental  to  the  com- 
mercial interests  of  these  Kingdoms";  and  the  Peers 
who  dissented  from  the  repeal,  filed  written  reasons  for 
their  dissent,  one  of  which  was: 

Because  the  reason  assigned  in  the  public  resolutions  of  the 
Provincial  Assemblies  in  the  North  American  Colonies,  for 
their  disobeying  the  Stamp  Act,  viz.,  "  That  they  are  not 
represented  in  the  Parliament  of  Great  Britain,"  extends  to 
all  other  laws  of  what  nature  soever  which  Parliament  has 
enacted,  or  shall  enact  to  bind  them  in  times  to  come,  and 
must  (if  admitted)  set  them  absolutely  free  from  any  obedience 
to  the  power  of  the  British  Parliament. 

However,  the  repeal  was  regarded  as  a  triumph  for 
Pitt,  and  as  an  admission  that  Great  Britain  would  make 
a  constitutional  settlement  with  the  Colonies  on  the  basis 
proposed  by  him,  if  they  would  agree. 

Along  with  the  Act  repealing  the  Stamp  Act,  there 
was  passed,  on  the  same  day,  the  famous  Declaratory 
Act  of  1766,  which  was  apparently  intended  to  fit  the 
case  whether  it  should  be  thought  best  later  on  to  declare 
Great  Britain  the  Imperial  State  of  the  British  Empire 
or  to  declare  the  Empire  abolished  and  a  British  Realm 
substituted  in  its  stead,  governed  by  a  Parliament  in 
which  the  inhabitants  of  the  "  Realm  "  outside  of  Great 
Britain  were  "  virtually  "  represented. 


Plans  of  Settlement,  1 765-1 767       177 

This  remarkable  Act,  which  has  never  yet  been  re- 
pealed, is  the  foundation-stone  on  which  the  British  Em- 
pire rests.  Its  purpose  was  to  declare  the  power  of  Great 
Britain  and  its  Parliament,  consisting  of  King,  Lords 
and  Commons,  over  all  the  dependencies.  Though  it 
related,  on  its  face,  solely  to  the  American  Colonies,  Mr. 
Alpheus  Todd,  in  his  Parliamentary  Government  in  the 
British  Colonies^  the  standard  work  on  British  colonial 
jurisprudence,  says  that  it  was  the  intention  of  Parlia- 
ment that  it  should  "  be  declaratory  of  the  legislative 
authority  of  Parliament  over  the  colonies  of  the  British 
Crown" — over  India  and  the  West  Indies,  as  well  as 
over  the  American  Colonies.  It  was  entitled  "  An  Act 
for  the  Better  Securing  the  Dependency  of  his  Majesty's 
Dominions  in  America  upon  the  Crown  and  Parliament 
of  Great  Britain,"  and  read  as  follows: 

Whereas  several  of  the  Houses  of  Representatives  in  his 
Majesty's  Colonies  and  Plantations  in  America,  have  of  late, 
against  law,  claimed  to  themselves,  or  to  the  General  As- 
semblies of  the  same,  the  sole  and  exclusive  right  of  imposing 
duties  and  taxes  upon  his  Majesty's  subjects  in  the  said 
Colonies  and  Plantations,  and  have,  in  pursuance  of  such 
claim,  passed  certain  votes,  resolutions,  and  orders,  derogatory 
to  the  legislative  authority  of  Parliament,  and  inconsistent 
with  the  dependence  of  the  said  Colonies  and  Plantations  upon 
the  Crown  of  Great  Britain :  May  it  therefore  please  your  most 
excellent  Majesty  that  it  may  be  declared;  and  be  it  declared 
by  the  King's  most  excellent  Majesty,  by  and  with  the  con- 
sent of  the  Lords  Spiritual  and  Temporal,  and  Commons,  in 
this  present  Parliament  assembled,  and  by  the  authority  of  the 
same;  That  the  said  Colonies  and  Plantations  in  America, 
have  been,  are,  and  of  right  ought  to  be,  subordinate  unto 
and  dependent  upon  the  Imperial  Crown  and  Parliament  of 
Great  Britain;  and  that  the  King's  Majesty,  by  and  with  the 
advice  and  consent  of  the  Lords  Spiritual  and  Temporal  and 
Commons  of  Great  Britain,    in    Parliament  assembled,  had, 


178  The  Administration  of  Dependencies 

hath,  and  of  right  ought  to  have,  full  power  and  authority  to 
make  laws  and  statutes  of  sufficient  force  and  validity  to  bind 
the  Colonies  and  people  of  America,  subjects  of  the  Crown  of 
Great  Britain,  in  all  cases  whatsoever. 

In  so  far  as  this  statute  declared  that  the  Colonies  were 
subordinate  unto  and  dependent  upon  the  Imperial 
Crown  and  Parliament  of  Great  Britain,  it  was  a  proper 
declaration  of  the  existence  of  the  British  Empire,  and  of 
the  power  of  Great  Britain,  as  the  Imperial  State.  In  so 
far  as  it  declared  that  the  British  Parliament  had  full 
power  and  authority  to  make  laws  and  statutes  of  suffi- 
cient force  and  validity  to  bind  the  Colonies  and  their 
inhabitants  in  all  cases  whatsoever,  it  was  a  denial  of  the 
existence  of  the  British  Empire  and  a  declaration  that 
all  the  region  over  which  the  Crown  and  Parliament  had 
power  constituted  a  single  British  Realm. 

The  claim  was  of  "  legislative  "  authority.  The  theory 
of  the  "  legislative  "  authority  in  Great  Britain  was,  that 
it  was  the  same  power  which  all  the  people  of  Great 
Britain,  if  assembled  together  as  a  legislature,  would 
have.  Such  a  power  is  unlimited  and  unconditioned  in 
any  constitutional  sense,  being  without  specific  limits  or 
conditions,  but  it  is  self-limited  and  self-conditioned  by 
the  interests  of  the  units  against  the  mass.  Acts  of 
Parliament  relating  to  the  American  Colonies,  which  were 
limited  and  conditioned  only  by  the  ratification  of  the 
people  of  Great  Britain,  acting  according  to  their  will  and 
non-expertly,  were,  of  course,  to  all  intents  and  purposes, 
so  far  as  the  Colonies  were  concerned,  unlimited  and  un- 
conditioned, because  the  people  of  Great  Britain  were  as 
external  to  the  Colonies  as  was  the  Parliament,  and  there 
was  no  possibility  of  their  power  being  self-limited  and 
self-conditioned  by  the  self-interest  of  the  individual 
units,  since  no  individual  in  Great  Britain  would  have 
an  interest,  distinct  from  the  mass,  in  seeing  that  the 


Plans  of  Settlement,  1 765-1 767       179 

dependencies  were  fairly  treated.  In  other  words,  a 
claim  of  the  British  Parliament  to  exercise  "  legislative" 
authority  over  the  Colonies  was  a  claim  to  exercise  un- 
limited and  unconditional  power,  while  a  claim  of  legis- 
lative authority  over  Great  Britain  was  a  claim  to  exercise 
power  without  any  specific  limits  and  without  any 
specific  conditions  laid  down  as  a  prerequisite,  but  subject 
to  be  limited  because  it  was  exercised  with  the  distinct 
understanding  that  the  exercise  of  it  was  valid  only  so 
long  as  it  should  continue  to  be  ratified  by  the  acquies- 
cence of  the  people  of  Great  Britain. 

The  next  Act  of  Parliament  relating  to  America 
showed  that  the  Declaratory  Act  of  1766  was  intended 
to  be  put  in  full  force.  In  1767,  Parliament  suspended  the 
sitting  of  the  General  Assembly  of  New  York  because  it 
had  failed  to  supply  money  sufficient  to  pay  for  the 
quartering  of  British  troops  in  the  Province  under  the 
provisions  of  the  annual  Acts,  which  permitted  the  quar- 
tering of  troops  in  inns  and  public  houses,  and,  in  case 
such  accommodations  were  insufificient,  in  uninhabited 
houses  and  barns,  allowed  the  seizing  of  wagons,  and  re- 
quired the  soldiers  so  quartered  to  be  furnished  with 
food,  drink,  and  lodging  at  the  expense  of  the  Colony. 

Another  Act,  passed  also  in  1767,  imposed  taxes  on 
glass,  lead,  painters'  colors,  paper,  and  tea  imported  into 
the  Colonies.  The  House  of  Commons,  in  this,  as  in  the 
Tariff  Act  of  1764  and  the  Stamp  Act,  "  gave  and 
granted  "  to  the  King  the  duties  provided  in  the  Act. 
In  the  preamble,  it  was  declared  that  the  purpose  of  the 
Act  was  to  raise  a  revenue 

for  making  a  more  certain  and  adequate  provision  for  de- 
fraying the  charge  of  the  administration  of  justice,  and  the 
support  of  the  civil  government,  in  such  Provinces  where  it 
shall  be  found  necessary,  and  towards  further  defraying  the 
expenses  of  defending,  protecting  and  securing  the  said 
dominions. 


i8o  The  Administration  of  Dependencies 

In  the  body  of  the  Act,  it  was  provided  that  the  net 
proceeds  of  the  tax  should  be  applied,  in  the  first  place, 
to  meeting  the  expenses  of  the  local  administration  in 
those  Colonies  in  which  the  Assemblies  did  not  make 
sufficient  provision  for  this  purpose,  and  that  the  residue 
should  be  kept  separate  in  the  British  Treasury  to  be 
used  for  the  Imperial  defence  in  the  Colonies. 

In  1767,  also,  an  Act  was  passed  establishing  a  Board 
of  Commissioners  of  Customs  for  America,  who  were  to 
act  as  inquisitors  and  prosecutors  in  the  enforcement  of 
the  Tariff  Acts. 

Pitt,  in  his  speech  on  the  repeal  of  the  Stamp  Act,  had 
made  himself,  in  a  sense,  the  Commissioner  of  Great 
Britain  to  negotiate  with  the  Colonies.  He  had  made  a 
definite  proposition  to  them  for  a  constitutional  settle- 
ment, and  his  great  political  influence  made  it  likely  that 
if  the  Colonies  accepted  it,  it  could  be  carried  through 
Parliament.  Franklin  had  gone  far  towards  committing 
the  Americans  to  an  acceptance  of  it. 

Upon  the  passage  of  these  Acts,  the  Americans 
naturally  turned  to  Dickinson,  the  author  of  the  reso- 
lutions of  the  Stamp  Act  Congress,  as  their  Commis- 
sioner to  answer  the  proposition  of  Pitt  (who  had  mean- 
while been  made  Earl  of  Chatham),  according  to  which 
Parliament,  in  passing  the  Acts,  was  strictly  acting. 
This  answer  Dickinson  made  in  his  Letters  from  a  Penn- 
sylvania Farmer,  otherwise  called  The  Farmer' s  Letters^ 
published  in  1767,  which  were  reprinted  in  England  and 
France  and  went  through  several  editions  in  those  coun- 
tries and  the  American  Colonies. 

His  answer  was,  in  effect,  first,  a  protest  against  a 
settlement  being  made  on  any  such  basis,  since  the 
Americans  claimed  that  provisions  ought  to  be  made,  in 
any  constitutional  settlement,  whereby  the  power  over 
the  dependencies  should  be  exercised  expertly  and  only 
according  to  the  necessity  in  each  case;  and,  secondly,  a 


Plans  of  Settlement,  1 765-1 767       181 

counter-proposition  to  the  effect  that,  if  a  settlement 
could  be  made  only  on  the  basis  that  Parliament  was  to 
have  a  certain  sphere  of  jurisdiction  and  the  Colonies 
another,  the  Colonies  could  consent  to  Parliament  having 
power  over  them  only  for  the  regulation  of  their  external 
commerce. 

While  Dickinson  did  not,  in  The  Farmer's  Letters, 
insist  upon  a  constitutional  settlement  on  the  basis  that 
the  administration  of  the  Colonies  in  Great  Britain  should 
be  in  the  hands  of  an  expert  tribunal,  his  argument  in- 
evitably made  for  a  settlement  on  that  basis.     He  said : 

*^  As  the  happiness  of  these  Provinces  indubitably  consists  in  their 
connection  with  Great  Britain,  any  separation  between  them  is  less 
likely  to  be  occasioned  by  civil  discords,  if  every  disgusting  measure 
is  opposed  singly,  and  while  it  is  new  :  for  in  this  manner  of 
proceediyig,  every  such  measure  is  most  likely  to  be  rectified. 
On  the  other  hand,  oppressions  and  dissatisfactions  being  per- 
mitted to  accumulate,  if  ever  the  governed  throw  off  the  load, 
they  will  do  more.  A  people  does  not  reform  with  modera- 
tion. The  rights  of  the  subject  therefore  cannot  be  too  often 
considered,  explained  or  asserted:  and  whoever  attempts  to 
do  this,  shows  himself,  whatever  may  be  the  rash  and  peevish 
reflections  of  pretended  wisdom  and  pretended  duty,  a  friend 
to  those  who  injudiciously  exercise  their  poiver,  as  well  as  to 
them,  over  whom  it  is  so  exercised. 

Had  all  the  points  of  prerogative  claimed  by  Charles  I.  been 
separately  contested  and  settled  in  preceding  reigns,  his  fate  would 
in  all  probability  have  been  very  dijferent ;  and  the  people  would 
have  been  content  with  that  liberty  which  is  compatible  with  regal 
authority.  But  he  thought  it  would  be  as  dangerous  for  him 
to  give  up  the  powers  which  at  any  time  had  been  by  usurpa- 
tion exercised  by  the  Crown,  as  those  that  were  legally  vested 
in  it.  This  produced  an  equal  excess  on  the  part  of  the  people. 
For  when  their  passions  were  excited  by  multiplied  grievances, 
they  thought  it  would  be  as  dangerous  for  them  to  allow  the 
powers  that  were  legally  vested  in  the  Crown,  as  those  which 


i82  The  Administration  of  Dependencies 

at  any  time  had  been  by  usurpation  exercised  by  it.  Acts, 
that  might  by  themselves  have  been  upon  many  considerations  ex- 
cused or  extenuated,  derived  a  contagious  malignancy  and  odium 
from  other  acts,  with  which  they  were  connected.  They  were  not 
regarded  according  to  the  simple  force  of  each,  but  as  parts  of  a 
system  of  oppression. 

If  the  Parliament  succeeds  in  this  attempt,  other  statutes 
will  impose  other  duties.  Instead  of  taxing  ourselves,  as  we 
have  been  accustomed  to  do,  from  the  first  settlement  of  these 
Provinces,  all  our  usual  taxes  will  be  converted  into  Parliament- 
ary taxes  on  our  importations;  and  thus  the  Parliament  will  levy 
upon  us  such  sums  of  money  as  they  choose  to  take,  without  any 
other  limitation  than  their  pleasure. 

We  know  how  much  labor  and  care  have  been  bestowed  by 
these  Colonies,  in  laying  taxes  in  such  a  manner,  that  they 
should  be  most  easy  to  the  people,  by  being  laid  on  the  proper 
articles;  most  equal,  by  being  proportioned  to  every  man's 
circumstances;  and  cheapest,  by  the  method  directed  for  col- 
lecting them. 

But  Parliamentary  taxes  will  be  laid  on  us  without  any  consider- 
ation, whether  there  is  any  easier  mode.  The  only  point  regarded 
will  be,  the  certainty  of  levying  the  taxes,  and  not  the  convenience  of 
the  people  on  whom  they  are  to  be  levied ;  and  therefore  all  statutes 
on  this  head  will  be  such  as  will  be  most  likely,  according  to 
the  favorite  phrase,  "  to  execute  themselves." 

Taxes  in  every  free  State  have  been,  and  ought  to  be,  as  ex- 
actly proportioned  as  is  possible  to  the  abilities  of  those  who 
are  to  pay  them.     They  cannot  otherwise  be  just. 

/  mention  these  particular  cases,  as  striking  instances  how 
far  the  late  Act  is  a  deviation  from  that  principle  of  justice, 
which  has  so  constantly  distinguished  our  own  laws  on  this  con- 
tinent, and  ought  to  be  regarded  in  all  laws. 

Of  course,  if  it  viras  necessary  that  "  every  disgusting 
measure  should  be  opposed  singly  and  while  it  was  new," 
if  "  all  points  of  prerogative"  claimed  by  Great  Britain 


Plans  of  Settlement,  1765-1767       183 

were  to  be  "separately  contested  and  settled,"  and  if  the 
acts  of  the  British  Government  were  "to  be  regarded 
according  to  the  simple  force  of  each,"  Parliamentary- 
government  of  the  Colonies  was  out  of  the  question. 
The  business  of  Parliament  could  not  stop  in  order  to 
hear  the  representatives  of  the  Colonies  on  each  proposed 
measure  or  on  each  measure  enacted  by  Parliament.  If 
it  legislated,  it  must  legislate  in  the  usual  manner. 

If  it  was  necessary  that  the  action  of  the  British  Gov- 
ernment should  take  place  only  "after  consideration  "  of 
what  was  "  the  easier  mode  "  for  the  colonists  and  what 
would  suit  their  "  convenience,"  Parliamentary  govern- 
ment was  out  of  the  question,  because  a  great  body  like 
Parliament  was  concerned  so  fully  with  its  own  interests 
that  it  could  not  "  judiciously  exercise  its  power"  over 
communities  external  to  Great  Britain,  and  its  Acts  re- 
lating to  such  communities  were  likely  to  contain  "  devi- 
ations from  justice." 

This  reasoning  necessarily  led  to  the  conclusion  that 
the  power  of  the  Imperial  State  over  the  Colonies  could 
never  properly  and  constitutionally  be  exercised  accord- 
ing to  mere  will,  but  must  always  be  exercised  according 
to  principles  ascertained  by  experts  after  hearing  the 
parties  interested. 

Having  thus  protested  against  all  non-expert  exercise 
of  the  power  of  Great  Britain,  as  contrary  to  the  true 
principles  of  Imperial  government,  he  proceeded  to  specify 
the  limits  within  which,  in  his  opinion,  America  could, 
for  the  sake  of  a  present  settlement  of  the  matters  in 
dispute,  accept  the  non-expert  exercise  of  the  power, 
saying: 

The  Parliament  unquestionably  possesses  a  legal  authority 
to  regulate  the  trade  of  Great  Britain,  and  all  her  colonies. 
Such  an  authority  is  essential  to  the  relation  between  a  mother 
country  and  her  colonies,    and  necessary  for  the  common 


184  The  Administration  of  Dependencies 

good  of  all.  He,  who  considers  these  Provinces  as  States  dis- 
tinct from  the  British  Empire,  has  very  slender  notions  of 
justice,  or  of  their  interests.  We  are  but  parts  of  a  whole; 
and  therefore  there  must  exist  a  power  somewhere  to  preside, 
and  preserve  the  connection  in  due  order.  This  power  is 
lodged  in  the  Parliament;  and  we  are  as  much  dependent  on 
Great  Britain,  as  a  perfectly  free  people  can  be  on  another. 

I  have  looked  over  every  statute  relating  to  these  Colonies, 
from  their  first  settlement  to  this  time;  and  I  find  every  one 
of  them  founded  on  this  principle,  till  the  Stamp  Act  admin- 
istration :  All  before,  are  calculated  to  regulate  trade,  and 
preserve  or  promote  a  mutually  beneficial  intercourse  between 
the  several  constituent  parts  of  the  Empire;  and  though  many 
of  them  imposed  duties  on  trade,  yet  those  duties  were  always 
imposed  with  design  to  restrain  the  commerce  of  one  part,  that 
was  injurious  to  another,  and  thus  to  promote  the  general  wel- 
fare.    The  raising  a  revenue  thereby  was  never  intended. 

These  Colonies  require  many  things  for  their  use,  which  the 
laws  of  Great  Britain  prohibit  them  from  getting  anywhere  but 
from  her.     Such  are  paper  and  glass. 

That  we  may  legally  be  bound  to  pay  any  general  duties  on 
these  commodities,  relative  to  the  regulation  of  trade,  is 
granted ;  but  we  being  obliged  by  her  laws  to  take  them  from 
Great  Britain,  any  special  duties  imposed  on  their  exportation 
to  us  only,  with  intention  to  raise  a  revenue  from  us  only,  are 
as  much  taxes  upon  us,  as  those  imposed  by  the  Stamp  Act. 

What  is  the  difference  in  substance  and  right,  whether  the 
same  sum  is  raised  upon  us  by  the  rates  mentioned  in  the 
Stamp  Act,  on  the  use  of  paper,  or  by  these  duties,  on  the  im- 
portation of  it  ?  It  is  only  the  edition  of  a  former  book,  shift- 
ing a  sentence  from  the  end  to  the  beginning. 

Suppose  the  duties  were  made  payable  in  Great  Britain. 
It  signifies  nothing  to  us,  whether  they  are  to  be  paid  here 
or  there.  Had  the  Stamp  Act  directed  that  all  the  paper 
should  be  landed  at  Florida,  and  the  duties  paid  there,  before 
it  was  brought  to  the  British  Colonies,  would  the  Act  have 
raised  less  money  upon  us,  or  have  been  less  destructive  of 


Plans  of  Settlement,  1 765-1 767       185 

our  rights  ?  By  no  means:  for  as  we  were  under  a  necessity 
of  using  the  paper,  we  should  have  been  under  the  necessity 
of  paying  the  duties.  Thus,  in  the  present  case,  a  like  neces- 
sity will  subject  us,  if  this  Act  continues  in  force,  to  the  pay- 
ment of  the  duties  now  imposed. 

Dickinson's  argument  on  this  phase  of  the  question 
necessarily  proceeded,  as  did  Pitt's,  upon  the  theory  that 
there  was  an  essential  difference  between  taxation  and 
all  other  kinds  of  legislation.  He  endeavored  to  prove 
this  exactly  as  Pitt  had  done,  by  showing  that  such  a 
distinction  had  always  existed  in  the  English  political 
practice  and  science  —  taxes  being  regarded  as  grants  of 
money  from  the  people  to  the  Crown,  and  legislation  as 
grants  of  privileges  by  the  Crown  to  the  people. 

The  difficulty  with  this  argument  was,  that  it  took  no 
account  of  the  changed  conditions  of  government.  In  the 
days  when  the  King  was  a  personality  apart  from  the 
people,  who  made  laws  for  them  without  their  consent, 
the  only  control  the  people  had  over  him  was  to  decide 
upon  the  amount  of  public  money  which  he  should  handle, 
and  the  amount  of  the  recompense  he  should  have  for 
his  services.  But  in  1767  the  King  was  fighting  for  his 
existence  as  the  superior  and  expert  governmental  agency 
of  the  Realm  and  Empire,  vainly  trying,  by  fair  means 
or  foul,  to  prevent  the  people,  through  Parliament  sitting 
as  the  Constitutional  Convention,  from  taking  away  his 
proper  powers  in  the  performance  of  that  agency.  The 
Commons  no  longer  needed  to  give  and  grant  to  him 
money,  because  they  gave  and  granted  to  him  his  office, 
and  the  salary  was  a  mere  incident  to  the  office.  From 
the  instant  that  the  Act  of  Settlement  was  an  accom- 
plished fact,  taxation  was  only  one  form  of  legislation, 
all  legislation  being  thenceforth  the  act  of  the  House  of 
Commons,  checked  by  the  King  and  the  House  of  Lords. 

The  position  taken  by  Pitt  and  followed  by  Dickinson, 


1 86  The  Administration  of  Dependencies 

that  the  settlement  should  proceed  on  the  basis  that  the 
Colonies  should  not  be  taxed  by  Great  Britain,  was 
proper  enough  as  the  basis  of  a  truce  or  a  modus  vivendi, 
but  not  as  the  basis  of  a  constitutional  settlement.  The 
State  of  Great  Britain,  as  the  Imperial  State,  or  Sover- 
eign, of  the  American  Colonies,  claimed  the  right  to 
make  laws,  without  their  consent,  given  in  any  manner 
whatever,  and  even  without  their  deliberation  and  advice, 
as  a  personality  apart  from  them,  self-appointed  for  that 
purpose.  So  long  as  it  did  that,  it  was  necessary,  as  a 
matter  of  political  warfare,  to  make  the  distinction  be- 
tween taxation  and  other  kinds  of  legislation,  and  to  in- 
sist, as  the  people  of  England  did  under  like  circumstances 
with  their  Kings,  that  as  long  as  the  Kings  made  such  a 
claim  to  legislate  without  their  consent  and  without 
their  deliberation  and  advice,  they  would,  without  the 
King's  consent,  and  without  his  deliberation  or  advice, 
fix  the  amount  of  money  which  he  should  have  and 
should  handle. 

The  distinction  between  taxation  and  other  forms  of 
legislation  was  a  distinction  necessitated,  therefore,  not 
by  a  state  of  internal  peace  in  the  Empire,  but  by  a  state 
of  distrust  of  the  Imperial  State  on  the  part  of  the  de- 
pendencies. It  furnished  a  ground  for  the  suspension  of 
hostilities,  but  provided  no  assurance  against  hostilities 
breaking  out  at  any  time  on  questions  other  than  those 
of  taxation.  It  left  the  British  Empire  in  a  condition  of 
inefificiency  as  a  political  organism,  and  compelled  Great 
Britain  either  to  exploit  its  dependencies,  or  to  pay  the 
whole  expense  of  the  Empire. 

Dickinson  vehemently  repudiated,  in  The  Farmer  s 
Letters,  any  intention  of  saying  anything  which  might 
tend  to  break  off  the  constitutional  connection  between 
Great  Britain  and  the  Colonies,  and  insisted  that  his  only 
purpose  was  to  bring  about  a  constitutional  settlement 
satisfactory  to  both  parties.     In  the  third  Letter,  he  said : 


Plans  of  Settlement,  1765-1767       187 

The  prosperity  of  these  Provinces  is  founded  in  their  de- 
pendence on  Great  Britain;  and  when  she  returns  to  her  "old 
good  humour,  and  her  old  good  nature,"  as  Lord  Clarendon 
expresses  it,  I  hope  they  will  always  think  it  their  duty  and 
interest,  as  it  most  certainly  will  be,  to  promote  her  welfare 
by  all  the  means  in  their  power. 

In  a  note  to  the  last  Letter,  he  said : 

If  any  person  shall  imagine  that  he  discovers,  in  these  Let- 
ters, the  least  dislike  of  the  dependence  of  these  Colonies  on 
Great  Britain,  I  beg  that  such  person  will  not  form  any  judg- 
ment on  particular  expressions,  but  will  consider  the  tenor  of 
all  the  Letters  taken  together.  In  that  case,  I  flatter  myself, 
that  every  unprejudiced  reader  will  be  convinced  that  the 
true  interests  of  Great  Britain  are  as  dear  to  me,  as  they  ought 
to  be  to  every  good  subject.  If  I  am  an  enthusiast  in  any 
thing,  it  is  in  my  zeal  for  the  perpetual  dependence  of  these 
Colonies  on  their  Mother  Country, — a  dependence  founded  on 
mutual  benefits,  the  continuance  of  which  can  be  secured  only 
by  mutual  affections. 

Comparing  Dickinson's  counter-proposition  with  Lord 
Chatham's  proposition,  it  w^ill  be  seen  that  they  differ  ma- 
terially. Lord  Chatham's  proposition  may  thus  be  stated  : 

Great  Britain  will  agree  that  it  has  no  right  to  tax  the 
American  Colonies;  this  admission  is  not,  however,  to  affect  its 
right,  by  Act  of  its  Parliament,  to  impose  external  or  customs 
duties,  which  right  Great  Britain  claims  and  reserves  to  itself; 
provided  the  American  Colonies  will  agree  that,  except  as 
above  agreed  and  admitted.  Great  Britain  has  the  right, 
by  Act  of  its  Parliament,  to  legislate  in  all  cases  whatsoever 
for  the  Colonies,  and  to  cause  its  legislation  to  be  executed. 

Dickinson's  counter-proposition  may  thus  be  stated: 

The  American  Colonies,  protesting  that  the  question  is  not 
of  the  right  of  Great  Britain  to  tax  them,  but  of  the  character 


1 88  The  Administration  of  Dependencies 

and  extent  of  all  its  powers  over  them  and  the  principles  on 
which  those  powers  rest,  but  being  willing  to  enter  into  a  con- 
stitutional settlement  which  will  relieve  the  present  situation, 
will  agree  that  Great  Britain  has  the  right,  by  Act  of  its  Par- 
liament, to  regulate  the  trade  and  commerce  of  the  Colonies 
to  the  extent  and  in  the  manner  practiced  prior  to  the  'Tariff 
Act  of  1764,  provided  Great  Britain  will  agree  that  it  has  no 
right  to  tax  the  Colonies,  and  that  this  agreement  shall  be 
construed  as  an  admission  that  it  has  no  right  to  levy  cus- 
toms duties  except  as  an  incident  to  the  regulation  of  com- 
merce and  to  the  extent  necessary  for  that  purpose. 

Dickinson  did  not  fail  to  point  out  the  violations  com- 
mitted by  Parliament,  otherwise  than  by  way  of  taxation, 
of  the  constitutional  rights  of  the  inhabitants  of  the 
Colonies,  and  of  the  Colonies  as  States.  The  provision 
of  the  Tariff  Act  of  1767,  by  which  the  proceeds  of  the 
taxes  were  to  be  used  "  for  making  a  more  certain  and 
adequate  provision  for  defraying  the  charge  of  the  ad- 
ministration of  justice  and  the  support  of  civil  govern- 
ment in  such  Provinces  where  it  shall  be  found  necessary," 
he  particularly  criticised  as  an  attack  upon  the  statehood 
of  the  Colonies,  demanding,  in  their  behalf,  a  Local  Ad- 
ministration and  a  Local  Judiciary  responsible  to  the 
people  of  the  Colonies.  Particularly,  he  demanded  a 
Colonial  Judiciary  which,  though  appointed  by  the 
Crown,  should  be  secured  in  oflfice  during  good  behavior, 
and  whose  salaries  should  be  such  as  the  Colonial  Legis- 
latures should  determine. 

Franklin  had  an  edition  of  The  Farmer  s  Letters  pub- 
lished in  England,  and  they  were  translated  and  printed 
in  France  and  went  through  several  editions  in  both 
countries.  Richard  Henry  Lee  had  an  edition  printed 
in  Virginia,  and  another  was  published  in  Boston. 

Dickinson's  counter-proposition  met  with  almost  uni- 
versal approval  throughout  the  Colonies.  Jefferson, 
speaking   of   the  situation  in  Virginia  in    1768,    in   his 


Plans  of  Settlement,  1 765-1 767       189 

Autobiography,  while  declaring  that,  in  his  view,  the 
relation  between  Great  Britain  and  the  American  Colo- 
nies was  "  exactly  the  same  as  that  of  England  and  Scot- 
land after  the  accession  of  James  and  until  the  Union, 
and  the  same  as  her  present  relations  with  Hanover," 
frankly  adds: 

In  this  doctrine,  however,  I  had  never  been  able  to  get  any 
one  to  agree  with  me  but  Mr.  Wythe.  He  concurred  in  it  from 
the  first  dawn  of  the  question,  '*  What  was  the  political  rela- 
tion between  us  and  England  ?  "  Our  other  patriots,  Ran- 
dolph, the  Lees,  Nicholas,  Pendleton,  stopped  at  the  half-way 
house  of  John  Dickinson,  who  admitted  that  England  had  a 
right  to  regulate  our  commerce,  and  to  levy  duties  on  it  for 
the  purposes  of  regulation,  but  not  of  raising  revenue. 

In  Massachusetts,  the  approval  took  an  organized  form. 
At  a  town-meeting  held  in  Boston  on  March  14,  1768, 
it  was  voted  "  that  the  thanks  of  the  Town  be  given  to 
the  ingenious  author  of  a  course  of  letters  published  at 
Philadelphia  and  in  this  place,  signed  *  A  Farmer,'  wherein 
the  rights  of  American  subjects  are  clearly  stated  and 
fully  vindicated,"  and  a  committee,  of  which  John  Han- 
cock and  Samuel  Adams  were  members,  was  appointed 
"  to  prepare  and  publish  a  letter  of  thanks  accordingly." 
In  the  letter  which  was  accordingly  prepared  and  which 
was  adopted  at  a  town-meeting  held  ten  days  later,  the 
Town  of  Boston  declared  that  to  Dickinson  "  America  is 
obliged  for  a  most  seasonable,  sensible,  loyal  and  vigorous 
vindication  of  her  invaded  rights  and  liberties,"  and 
added : 

Nor  is  this  Western  world  alone  indebted  to  your  wisdom, 
fortitude  and  patriotism;  Great  Britain  also  may  be  confirmed 
by  you  that  to  be  truly  great  and  successful,  she  must  be  just; 
that  to  oppress  America  is  to  violate  her  own  honor,  defeat 
her  brightest  prospects  and  contract  her  spreading  Empire. 


iQo  The  Administration  of  Dependencies 

Thus  in  all  sections  of  America,  Dickinson  was  recog- 
nized as  the  Commissioner  for  the  Colonies  to  treat  with 
Great  Britain,  and  his  counter-proposition  for  a  consti- 
tutional settlement  approved  by  what  was  virtually  a 
plebiscite.  At  the  time  The  Farmer  s  Letters  were  pub- 
lished, however,  Lord  Chatham  was  out  of  power,  and 
the  disposition  of  the  Ministry  was  to  adopt  temporizing 
measures,  in  the  hope  of  avoiding  a  constitutional  settle- 
ment with  the  Colonies. 


CHAPTER   XI 

IMPERIAL   UNITY,    1 768 

AS  a  result  of  the  consideration  given  to  the  question 
of  the  relationship  between  Great  Britain  and  the 
Colonies  prior  to  1768,  two  distinct  views  of  the 
unity  of  the  British  Empire  were  beginning  to  be  held, 
according  to  one  of  which  the  Empire  was  a  permanent 
Union  of  States,  in  which  the  Imperial  State  governed  the 
others  according  to  its  mere  will,  except  in  so  far  as  it  had 
agreed  not  to  govern  them  at  all ;  and  according  to  the 
other,  a  temporary  Union  of  States  which  might  be  con- 
verted, at  the  option  of  Great  Britain,  into  a  Unitary 
State — that  is,  an  aggregation  of  lands  and  persons  under 
the  British  Government.  Of  the  first  view  Governor  Ber- 
nard was  the  principal  exponent.  In  a  letter  of  January 
28,  1768,  published  in  his  Select  Letters  on  the  Trade  and 
Government  of  America,  he  used  the  expression  "Imperial 
State"  to  describe  Great  Britain  and  the  expression 
"dependent  States"  to  describe  the  Colonies,  and  used 
language  which  showed  that  he  regarded  the  relationship 
as  a  permanent  one.     In  this  letter  he  said : 

When  the  dispute  has  been  carried  so  far  as  to  involve  in  it 
matters  of  the  highest  importance  to  the  Imperial  Sovereignty  ; 
when  it  has  produced  questions  which  the  Sovereign  State 
cannot  give  up,  and  the  dependent  States  insist  upon  as  the 
terms  of  a  reconciliation;  when  the  Imperial  State  has  so  far 
given  way  as  to  let  the  dependent  States  flatter  themselves 
that  their  pretensions  are  admissible  ;  whatever  terms  of 
reconciliation  time,  accident  or  design  may  produce,  if  they 

191 


192  The  Administration  of  Dependencies 

are  deficient  in  settling  the  true  relation  of  Great  Britain  to 
her  Colonies  and  ascertaining  the  bounds  of  the  Sovereignty 
of  the  one,  and  the  dependence  of  the  other,  conciliation  will 
be  no  more  than  a  suspension  of  animosity;  the  seeds  of  which 
will  be  left  in  the  ground  ready  to  start  up  again  whenever 
there  shall  be  a  new  occasion  for  the  Americans  to  assert  their 
independence  of  the  authority  of  Parliament;  that  is,  when- 
ever the  Parliament  shall  make  ordinances  which  the  Ameri- 
cans shall  think  not  for  their  interest  to  obey. 

Ex-Governor  Pownall,  in  the  fourth  edition  of  his  book 
The  Administration  of  the  Colonies,  in  1768,  took  the 
position  that,  vi^hether  or  not  the  Colonies  had  ever  been 
related  to  Great  Britain  as  States,  nevertheless,  when  Par- 
liament elected  to  tax  them,  they  were  thereby  incorpor- 
ated into  the  British  Realm  and  their  inhabitants  merged 
with  the  inhabitants  of  Great  Britain.  He  criticised  the 
language  of  the  Declaratory  Act  of  1766,  in  which  the 
British  Government  had  taken  the  position  that  the  Col- 
onies and  their  inhabitants  were  dependent  upon  the  Im- 
perial Crown  of  Great  Britain,  because,  as  he  claimed,  it 
contained  an  admission  that  the  Colonies  were  outside  the 
Realm.  He  reasoned  that  in  the  expression  "the  Im- 
perial Crown  of  Great  Britain,"  it  was  necessarily  implied 
that  the  State  of  Great  Britain  was  the  Sovereign  of  the 
dependencies  and  their  inhabitants,  and  that,  since  the 
State  of  Great  Britain,  as  Sovereign,  necessarily  acted 
through  its  whole  Government,  consisting  of  King, 
Lords,  and  Commons,  that  whole  Government  consti- 
tuted the  Imperial  Crown.  If  so,  he  argued  that,  since 
the  powers  of  the  whole  British  Government  must  be 
determined  by  the  powers  of  the  British  State,  as  King 
or  Sovereign  of  the  Colonies  and  their  inhabitants,  and 
since  the  powers  of  the  British  State,  as  Sovereign,  over 
the  Colonies,  must  be  conditioned  and  limited  in  the 
same  way  that  the  powers  of  any  natural  person,  as 
Sovereign,  would  be  conditioned  and  limited,  this  theory 


Imperial  Unity,  1768  193 

inevitably  led  to   a  conditioned   and  limited  power   of 
Parliament  over  the  Colonies.     He  said : 

At  this  day  the  constitution  and  rights  of  the  Colonies,  in 
the  actual  exercise  of  them,  are  unsettled ;  the  relation  in  which 
they  stand  connected  with  the  Realm  and  with  the  King,  is  dis- 
puted; and  Parliament,  as  well  as  Ministers,  are  balancing  in 
opinion  what  is  the  true,  legal,  and  constitutional  mode  of 
administration  by  which  those  Colonies  are  to  be  governed. 
Whether  the  Colonies  be  demesnes  of  the  Crown,  without  the 
Realm,  or  parts  and  parcels  of  the  Realm,  whether  these 
foreign  dominions  of  the  King  be  as  yet  annexed  to  the  Realm 
of  England,  whether  the  colonists  be  subjects  of  the  King  in 
his  foreign  dominions,  or  whether  they  be  subjects  of,  and  owe 
allegiance  to  the  Realm,  has  been  at  various  times,  and  is  at 
this  day  called  into  dispute.  This  question  is  now  no  longer 
of  curiosity  and  theory;  it  is  brought  actually  into  issue.  It 
is  now  by  deeds  and  overt  acts  discussed,  and  must  be  decided. 

From  the  uncontroverted  and  universal  idea  of  the  sub- 
ordination of  the  Colonies  to  the  Government  of  the  Mother 
Country,  this  power,  by  which  the  Parliament  makes  laws 
that  shall  be  binding  on  the  Colonies,  has  been  constantly 
exerted  by  the  Government  of  England,  (afterwards  Great 
Britain)  and  submitted  to  by  the  Colonies.  The  fundamental 
maxim  of  the  laws  of  those  countries,  is,  that  first,  the  common 
law  of  England,  together  with  such  statutes  (the  ecclesiastical 
laws  and  canons  excepted)  as  were  enacted  before  the  Colonies 
had  Legislatures  of  their  own;  secondly,  the  laws  made  by 
their  own  Legislatures;  together  with,  thirdly,  such  Acts  of 
Parliament  as  by  a  special  clause  are  extended  to  America, 
since  that  time, — are  the  laws  of  each  Province  or  Colony. 
The  jurisdiction  and  power  of  every  court  established  in  that 
country,  the  duty  of  every  civil  officer,  the  process  of  every 
transaction  in  law  and  business  there,  is  regulated  on  this 
principle.  Nay  further,  every  Act  of  Parliament  passed  since 
the  establishment  of  the  Colonies,  which  respects  the  general 
police  of  the  Realm,  or  the  rights  and  liberties  of  the  subjects 


194  The  Administration  of  Dependencies 

of  the  Realm,  although  not  extended  by  any  special  clause  to 
America  by  Parliament,  although  without  the  intervention,  or 
express  consent  of  their  own  respective  Legislatures  or  Repre- 
sentatives, has  been  considered,  and  I  may  venture  to  say, 
adopted  as  part  of  the  law  and  constitution  of  those  countries; 
but  by  what  principle  of  our  Constitution,  by  what  maxim  of 
law,  this  last  practice  has  been  established,  is  not  so  easy  to 
ascertain,  any  more  than  it  will  be  easy  to  fix  any  rule,  when 
the  Colonies  shall  adopt,  or  when  they  may  refuse  those  kinds 
of  laws  of  the  Mother  Country.  This  arises,  as  I  have  said, 
from  some  vague  indecisive  idea  that  the  Colonies  are  of,  or 
some  parts  of  the  Realm ;  but  how  or  what  parts,  or  whether 
any  parts  at  all,  has  never  yet  been  thoroughly  examined. 

We  have  seen  what  was,  in  reality,  the  dependence  and 
subordination  of  the  colonists  to  the  King,  while  they  were 
supposed  to  be  subject  to  him  in  a  Seignoral  capacity.  We 
have  seen  what  must  have  been  the  same  subordination,  while 
they  were  supposed  to  be  subject  to  the  two  Houses  of  Lords 
and  Commons,  as  Sovereign  in  the  same  capacity. 

Let  us  take  up  the  next  idea,  that  while  they  are  not  of  the 
body  of  the  Realm,  are  no  parts  or  parcel  of  the  same,  but 
bodies  corporate  and  politic,  distinct  from  and  without  the 
Realm,  "they  are  nevertheless,  and  of  right  ought  to  be  sub- 
ordinate unto,  and  dependent  upon  the  Imperial  Crown  of  Great 
Britain,  (/.  e.  the  Realm,)  and  that  the  King's  Majesty,  by  and 
with  the  advice  and  consent  of  the  Lords  Spiritual  and  Tem- 
poral and  Commons  of  Great  Britain  assembled  in  Parliament, 
had,  hath,  and  of  right  ought  to  have  full  power  and  authority 
to  make  laws  and  statutes  of  sufficient  force  and  validity  to 
bind  the  Colonies  and  people  of  America,  subjects  of  the 
Crown  of  Great  Britain,  in  all  cases  whatsoever."  In  this 
idea  we  have  a  very  different  state  of  the  relation,  namely,  the 
Imperial  Crown  of  Great  Britain,  the  King,  Lords  and  Com- 
mons, collectively  taken,  is  stated  as  Sovereign  on  the  one 
hand,  and  the  colonists  as  subjects  on  the  other. 

There  is  no  doubt,  but  that  in  the  nature,  reason,  justice 
and  necessity  of  the  thing,  there  must  be  somewhere,  within 
the  body  politic  of  every  Government,   an   absolute   power. 


Imperial  Unity,  1768  195 

The  political  freedom  of  Great  Britain  consists  in  this  power's 
being  lodged  nowhere  but  in  King,  Lords  and  Commons  in 
Parliament  assembled.  This  power  is  absolute  throughout 
the  Realm,  and  yet  the  rights  and  liberties  of  the  subject  are 
preserved,  as  the  Communttas  Populi  is  the  body,  of  which  this 
Imperium  is  the  soul,  reasoning,  willing,  and  acting,  in  absolute 
and  entire  union  with  it,  so  as  to  form  one  political  person. 

There  can  be  no  doubt  but  that  this  power  is  absolute 
throughout  the  dominions  of  the  Realm;  yet  in  the  exercise 
of  this  power,  by  the  Imperial  Crown  of  Great  Britain, — that 
is,  by  the  King's  Majesty,  with  the  Lords  and  Commons  in 
Parliament  assembled, — towards  the  Colonies,  if  they  are  not 
of  this  body  of  the  Realm,  but  are  still  to  be  considered  as 
distinct  bodies,  foreign  or  extraneous  parts,  without  the  Realm 
and  the  jurisdiction  of  this  Kingdom,  there  is  surely  some  at- 
tention due  to  the  nature  of  this  absoluteness  in  this  case. 

If  the  people  of  the  Colonies  are  no  part  of  the  people,  or 
of  the  body,  of  the  Realm  of  Great  Britain,  and  if  they  are  to 
be  stated  in  the  argument,  as  subject  to  the  King,  not  as  the 
head  of  that  compound  political  person,  of  which  they  are  in 
part  the  body,  sed  ut  caput  alter ius popidl, — as  wearing  the  Im- 
perial Crown  of  Great  Britain,  as  the  head  to  which  the  Realm 
of  Great  Britain  is  the  body,  and  of  which  body  the  Parliament 
is  the  soul,  but  of  which  the  Colonies  are  no  part, — then  this 
Imperial  Supreme  Magistrate,  the  collective  power  of  King, 
Lords  and  Commons,  may  be  stated  as  Sovereign  on  the  one 
hand,  while  the  people  of  the  Colonies  stand  as  subjects  on 
the  other. 

Taking  the  relation  of  the  Colonies  to  the  Mother  Country 
in  this  view,  when  the  argument  is  stated  in  this  manner,  we 
surely  may  say  with  exactness  and  truth,  that  if  the  colonists, 
by  birthright,  by  nature  or  by  establishment,  ever  were  en- 
titled to  all  the  rights,  privileges,  liberties  and  franchises  of 
an  Englishman,  the  absolute  power  of  this  Sovereign  must 
have  some  bounds;  must  from  its  own  nature,  from  the  very 
nature  of  these  rights  of  its  subjects,  be  limited  in  its  exten- 
sion and  exercise.  Upon  this  state  of  the  case,  questions  will 
necessarily  arise,  which  I  will  not  take  upon  me  to  decide, 


196    The  Administration  of  Dependencies 

whether  this  Sovereign  can  disfranchise  subjects,  so  circum- 
stanced, of  their  rights,  because  they  are  settled  beyond  the 
territorial  limits  of  the  Realm;  whether  these  subjects,  thus 
circumstanced,  can,  because  they  are  supposed  not  to  be  of  the 
Realm,  lose  that  interest  in  the  Legislative  Power,  which  they 
-would  have  had  if  they  were  of,  or  within  the  Realm ;  whether 
this  natural  right  which  they  have  to  personal  liberty  and  to 
political  freedom  is  inherent  in  them  "to  all  intents  and  pur- 
poses, as  though  they  had  been  bom  within  the  Realm,"  or 
whether  "it  is  to  be  understood,  with  very  many  and  very 
great  restrictions  ";  whether  these  people,  from  the  nature  of 
these  inherent  rights  and  liberties,  are  entitled  to  have,  and 
have  a  right  to  require  a  constitution  of  the  same  political 
liberty  as  that  which  they  left,  or  whether  "the  whole  of  their 
constitutions  are  liable  to  be  new  modelled  and  reformed  "  at 
the  will  of  this  Sovereign;  whether  the  legislative  part  of  their 
constitution  is,  they  being  distinct,  although  subordinate, 
dominions,  and  no  part  of  the  Mother  Country,  an  inherent 
right  of  a  body  of  Englishmen,  so  circumstanced,  or  whether 
it  can  be  suspended,  or  taken  away  at  the  will  of  this  Sovereign. 
In  stating  these  doubts,  I  do  not  here  add  the  question,  which 
in  time  past  has  been  raised,  on  the  right  which  this  Sovereign 
has,  or  has  not,  to  impose  taxes  on  these  subjects,  circum- 
stanced as  above  stated,  without  the  intervention  of  their  own 
free  will  and  grant;  because,  let  these  other  questions  be  de- 
cided howsoever  they  may,  this  stands  upon  quite  other 
grounds,  and  depends  upon  quite  other  principles. 

So  long  as  the  Government  of  the  Mother  Country  claims  a 
right  to  act  under  this  idea  of  the  relation  between  the  Mother 
Country  and  the  Colonies,  so  long  as  the  Colonies  shall  be 
esteemed  in  this  relation,  as  "  no  part  of  the  Mother  Country," 
so  long  will  the  colonists  think  they  have  a  right  to  raise  these 
questions,  and  that  it  is  their  duty  to  struggle  in  the  cause 
which  is  to  decide  them;  and  so  long  will  there  be  faction  and 
opposition,  instead  of  government  and  obedience. 

This  amounted  to  saying  that  Parliament,  in  the  De- 
claratory Act  of  1766,  had  contradicted  itself,  in  that, 


Imperial  Unity,  1768  197 

after  having  declared  that  the  Colonies  and  their  inhabi- 
tants were  subordinate  to  and  dependent  upon  the  Im- 
perial Crown  and  Parliament  of  Great  Britain, — which 
necessarily  implied  that  the  Colonies  were  dependent 
states,  that  the  relationship  between  them  and  Great 
Britain  was  subject  to  constitutional  conditions  and  limi- 
tations, and  that  the  powers  of  Parliament  over  the  Col- 
onies and  their  inhabitants  were  measured  by  those  which 
the  Imperial  State  had,  by  the  Constitution  of  the  Em- 
pire, to  legislate  and  to  execute  legislation, — it  had  im- 
mediately proceeded  to  declare  that  Parliament  had 
unconditioned  and  unlimited  power  over  the  Colonies  and 
their  inhabitants. 

He  claimed  that  Parliament  ought  not  to  have  declared 
that  Great  Britain  was  the  Imperial  State  and  the  Colo- 
nies its  dependencies,  and  that,  therefore,  it  ought  to 
withdraw  that  declaration  and  substitute  for  it  another  to 
the  effect  that  Great  Britain  was  an  integral  part  of  the 
Realm,  and  the  Colonies  another  integral  part,  and  that 
the  Colonies  were  entitled  to  be  represented  in  Parlia- 
ment. 

Since  no  Colony  had  ever  sent  representatives  to  Par- 
liament, it  was  necessary,  in  order  to  prevent  such  a  dec- 
laration as  Pownall  proposed  from  amounting  to  a  charge 
of  ignorance  or  wilful  oppression  of  the  Colonies  by  Great 
Britain  in  the  past,  and  of  ignorant  or  weak  submission 
by  the  Colonies  to  wrong-doing  by  Great  Britain,  to  give 
some  reason  why  the  Colonies  had  not  been  thereto- 
fore represented  in  Parliament.  The  reason  advanced  by 
him  was,  that  the  right  of  the  Colonies  to  representation 
first  began  when  Parliament  considered  them  as  objects  of 
taxation.     He  said : 

The  Colonies,  from  their  remote  distance  and  local  circum- 
stances, could  not  have  been  incorporated  into  any  county, 
city  or  borough, — at  least,  so  it  is  said:  and  yet,  at  the  same 


198    The  Administration  of  Dependencies 

time  they  are  supposed  to  be,  and  are  considered  as  within  the 
Diocese  of  London.  The  colonists  were  considered  as  hav- 
ing gone  forth  from,  and  having  quitted  the  Realm;  as  having 
settled  on  land  without  the  Realm. 

The  Colonies  thus  remote  and  separate  from  the  Realm, 
were  formed  and  incorporated  into  distinct  communities;  were 
erected  into  Provinces;  had  the  jura  regalia  granted  to 
them;  were,  in  consequence  thereof,  to  all  intents  and  pur- 
poses Counties  Palatine,  in  like  and  as  ample  manner  as  the 
County  Palatine  of  Durham  was,  some  matters  of  form  ex- 
cepted. They  were  dominions  of  the  King  of  England; 
although,  according  to  the  language  of  those  times,  "  not  yet 
annexed  to  the  Crown."  They  were  under  the  jurisdiction  of 
the  King  upon  the  principles  of  feudal  Sovereignty,  although 
considered  as  "out  of  the  jurisdiction  of  the  Kingdom."  The 
Parliament  itself  doubling,  at  that  time,  whether  it  had  juris- 
diction to  meddle  with  those  matters,  did  not  think  proper  to 
pass  bills  concerning  America.  The  Colonies  had,  therefore. 
Legislatures  peculiar  to  their  own  separate  communities,  sub- 
ordinate to  England,  in  that  they  could  make  no  laws  contrary 
to  the  laws  of  the  Mother  Country,  but,  in  all  other  matters 
and  things,  free,  uncontrolled  and  complete  Legislatures,  in. 
conjunction  with  the  King  or  his  Deputy,  as  part  thereof. 

When  the  King,  at  the  Restoration,  participated  in  the 
Sovereignty  over  these  his  foreign  dominions,  with  the  Lords 
and  Commons,  the  Colonies  became,  in  fact,  the  dominions  of 
the  Realm, — became  subjects  of  the  Kingdom.  They  came, 
in  fact,  and  by  an  actual  constitutional  exercise  of  power, 
under  the  authority  and  jurisdiction  of  Parliament.  They  be- 
came connected  and  annexed  to  the  State.  By  coming  as  parts 
of  the  British  Realm,  not  as  a  separate  Kingdom,  (which  is  the 
case  of  Ireland),  under  subjection  to  the  Parliament,  they 
became  participants  of  the  rights  and  liberties  on  which  the 
power  of  Parliament  is  founded.  By  the  very  act  of  extend- 
ing the  power  of  Parliament  over  the  Colonies,  the  rights  and 
liberties  of  the  Realm  must  be  also  extended  to  them,  for, 
from  the  nature  of  the  British  Constitution,  from  the  constitu- 
tion of  Parliament  itself,  they,  as  parts,  can  be  subject  by  no 


Imperial  Unity,  1768  199 

other  mode,  than  by  that  in  which  Parliament  can  exercise  its 
Sovereignty;  for  the  nature  of  the  power  and  the  nature  of 
the  subjection  must  be  reciprocal.  They  became  therefore 
annexed,  although  perhaps  not  yet  united  parts  of  the  Realm. 
But  to  express  all  that  I  mean,  in  a  proposition  that  can  neither 
be  misunderstood  nor  misinterpreted,  they  from  that  moment, 
(whatever  was  their  prior  situation),  stood  related  to  the 
Crown  and  to  the  Realm  literally  and  precisely  in  the  same 
predicament  in  which  the  County  Palatine  of  Durham  stood, 
— that  is,  subject  to  be  bound  by  Acts  of  Parliament  in  all 
cases  whatsoever,  and  even  "liable  to  all  rates,  payments 
and  subsidies  granted  by  Parliament,"  although  the  inhabi- 
tants of  these  countries,  "  have  not  hitherto  had  the  liberty  and 
privilege  of  sending  knights  and  burgesses  to  Parliament  of 
their  own  election."  And,  in  the  same  manner,  also,  be- 
cause, in  that  the  inhabitants  of  the  County  Palatine  of  Dur- 
ham were  liable  to  all  rates,  payments  and  subsidies  granted 
by  Parliament,  and  were  therefore  concerned,  with  others  the 
inhabitants  of  this  Kingdom,  to  have  knights  and  burgesses  in 
Parliament,  of  their  own  election,  to  represent  the  condition 
of  their  country,  as  the  inhabitants  of  other  countries  had,  it 
was  by  Act  of  Parliament  enacted,  that  they  should  have 
such, — in  the  same  manner,  I  say,  whenever  these  Colonies 
shall  be  considered,  in  Parliament,  as  objects  of  taxation,  and 
be  rendered  liable  to  rates,  payments  and  subsidies  granted 
by  Parliament  out  of  their  property,  they  will  become  con- 
cerned equally  with  others  the  inhabitants  of  this  Kingdom, 
to  have  knights  and  burgesses  in  Parliament,  of  their  own 
election,  to  represent  the  condition  of  their  country,  as  the 
inhabitants  of  other  countries  have,  and  of  right  ought  to 
have.  Although  a  right  in  Parliament  to  make  laws  for 
governing  and  taxing  the  Colonies,  may  and  must,  in  the  order 
of  time,  precede  any  right  in  the  Colonies  to  a  share  in  the 
Legislature,  yet  there  must  arise  and  proceed  pari  passu,  a 
right  in  the  Colonies  to  claim,  by  petition,  a  share  in  the 
representation,  by  having  knights  and  burgesses  in  Parliament, 
of  their  own  election,  to  represent  the  condition  of  their 
country.     And  as,  in  such  circumstances,  this  right  shall  arise 


200    The  Administration  of  Dependencies 

on  one  hand,  so  on  the  other,  it  may  become  a  duty  in  Govern- 
ment to  give  them  power  to  send  such  representatives  to 
Parliament;  nay,  could  one  even  suppose  the  Colonies  to  be 
negligent  in  sending,  or  averse  to  send  such  representatives, 
it  would  in  such  case,  as  above  settled,  become  the  duty  of 
Government  to  require  it  of  them. 

As  the  proposition  that  the  Colonies  became  entitled 
to  representation  in  Parliament  whenever  it  began  to  tax 
them  necessarily  implied,  unless  qualified,  that  all  the  ex- 
isting Tariff  Acts  relating  to  the  Colonies  were  unconsti- 
tutional and  invalid,  Pownall  had  to  give  some  reason  by 
which  the  validity  of  these  Acts  could  be  upheld.  This 
he  did  in  the  following  language : 

Although  from  the  spirit  and  essence  of  our  Constitution,  as 
well  as  the  actual  laws  of  it,  "the  whole  body  of  the  Realm, 
and  every  particular  member  thereof,  either  in  person  or  by 
representation,  (upon  their  own  free  election)  are,  by  the  laws 
of  the  Realm,  deemed  to  be  present  in  the  High  Court  of 
Parliament,"  yet,  as  the  circumstances  of  the  several  members 
of  this  body  politic  must  be  often  changing,  as  many  acquisi- 
tions and  improvements,  by  trade,  manufactures  and  colonies, 
must  make  great  changes  in  the  natural  form  of  this  body; 
and  as  it  is  impossible,  both  from  the  gradual  nature  of  these 
changes,  and  from  the  mode  of  the  representative  body,  that 
this  representative  body  can,  in  every  instance  and  moment, 
follow  the  changes  of  the  natural  passibus  cequis ;  it  must 
necessarily  at  times,  from  the  nature  of  things,  not  be  an 
actual  representative,  although,  from  the  nature  of  the  con- 
stitution of  government,  it  must,  in  the  interim,  continue  to 
be  a  just  and  constitutional  representative.  And  hence,  from 
the  laws  of  nature,  as  well  as  from  the  nature  of  our  own  laws 
and  Constitution,  arises  the  justice  and  right,  which  Parlia- 
ment always  has  had  to  render  the  several  members  of  the 
Realm  liable  to  rates,  payments  and  subsidies,  granted  by  Parlia- 
ment, although  such  members  have  not,  as  yet,  had  the  liberty 
and  privilege  to  send  knights  and  burgesses  to  Parliament,  of 


Imperial  Unity,  1768  201 

their  own  election.  Yet  on  the  other  hand,  as  the  principle 
that  no  free  people  ought  to  be  taxed  but  by  their  own  con- 
sent, freely  originating  from,  and  given  by  themselves  or  their 
representatives,  is  invariable,  absolute  and  fixed  in  truth  and 
right,  so  the  mode  of  the  representation  in  Parliament  has 
from  time  to  time  altered,  so  as  to  extend  to,  and  to  suit  the 
mode  under  which  the  represented  were,  from  time  to  time, 
found  to  exist.  Hence  it  was,  that  many  towns,  boroughs, 
counties,  and  even  dominions,  which  from  anything  that  did 
exist,  or  was  to  be  found  in  their  antiquas  libertates,  and  liberas 
consuetudines^  were  not  previously  represented  by  members  of 
Parliament  of  their  own  election,  have,  as  they  acceded  to  the 
Realm,  or  increased  within  the  Realm,  so  as  to  be  equally 
concerned  to  have  knights  and  burgesses  in  Parliament,  of 
their  own  election,  to  represent  them  equally  as  other  in- 
habitants of  the  Realm,  according  to  such  modes  as  were 
at  the  time  admitted  to  be  legal  and  constitutional,  been 
called  to  a  share  in  the  Common  Council  of  the  Realm. 
Hence  it  was  that  the  County  Palatine  of  Durham,  after  many 
trials,  and  a  long  struggle,  was  admitted  to  the  privilege  of 
sending  knights  and  burgesses  to  Parliament. 

Having  thus  cleared  away,  as  he  thought,  the  historical 
obstacles  which  stood  in  the  way  of  a  declaration  that 
Great  Britain  and  the  Colonies  constituted  a  single  Uni- 
tary State,  he  proceeded  to  argue  that  to  make  such  a 
declaration  was  simply  to  recognize  existing  fac's  and 
conditions,  saying: 

It  is  therefore  the  duty  of  those  who  govern  us,  to  carry 
forward  this  state  of  things  to  the  weaving  of  this  lead  [/,  <?., 
the  leadership  in  matters  of  common  and  general  interest] 
into  our  system,  that  Great  Britain  may  be  no  more  considered 
as  the  Kingdom  of  this  Isle  only,  with  many  appendages  of 
provinces,  colonies,  settlements,  and  other  extraneous  parts, 
but  as  a  grand  Marine  Dominion  consisting  of  our  possessions 
in  the  Atlantic  and  in  America  united  into  a  one  Empire,  in  a 
one  center,  where  the  seat  of  government  is. 


202    The  Administration  of  Dependencies 

Would  statesmen  doubt  for  a  while  the  predetermined 
modes  which  artificial  systems  prescribe,  would  they  dare  to 
look  for  truth  in  the  nature  of  things,  they  would  soon  adopt 
what  is  right,  as  founded  upon  fact;  they  would  be  naturally 
led  into  the  true  system  of  government,  by  following,  with  the 
powers  of  the  State,  where  the  actual  and  real  powers  of  the 
system  of  things  lead  to ;  they  would  see,  that,  by  the  various 
and  mutual  interconnections  of  the  different  parts  of  the  Brit- 
ish dominions  throughout  the  Atlantic  and  in  America,  by  the 
intercommunion  and  reciprocation  of  their  alternate  wants 
and  supplies,  by  the  combination  and  subordination  of  their 
several  interests  and  powers,  by  the  circulation  of  their  com- 
merce, revolving  in  an  orbit  which  hath  Great  Britain  for  its 
center, — that  there  does  exist,  in  fact,  in  nature,  a  real  union 
and  incorporation  of  all  these  parts  of  the  British  dominions, 
an  actual  system  of  dominion ;  which  wants  only  to  be  avowed 
and  actuated  by  the  real  spirit  in  which  it  moves  and  has  its 
being,  by  that  spirit  which  is  the  genuine  spirit  of  the  British 
Constitution,  by  that  spirit  from  which  the  British  Government 
has  arisen  to  what  it  is,  by  the  spirit  of  extending  the  basis  of 
its  representative  Legislature  through  all  the  parts  to  whereso- 
ever the  rights,  interest  or  power  of  its  dominions  extend, — 
so  as  to  form  (I  cannot  too  often  inculcate  the  idea)  a  grand 
Marine  Dominion,  consisting  of  our  possessions  in  the  Atlan- 
tic, and  in  America,  united  into  a  one  Empire,  in  a  one  center, 
where  the  seat  of  government  is, 

Pownall's  proposition  to  convert  the  British  Empire 
into  a  Unitary  State  is  one  which,  ever  since  his  time,  has 
recrudesced  at  intervals,  and  vi^hich  seems  likely  to  recru- 
desce frequently  in  the  future.  As  an  apparently  logical 
necessity  from  the  doctrine  of  "representative  govern- 
ment," so-called,  the  proposition  has  an  extraordinary 
fascination  for  that  great  body  of  persons  who  look  upon 
that  doctrine  as  the  cure-all  for  political  ills,  and  who  re- 
gard as  political  heresy  every  suggestion  that  government 
by  an  elected  assembly  has  its  limitations,  beyond  which 
it  becomes  a  political  curse  instead  of  a  political  blessing. 


Imperial  Unity,  1768  203 

As  he  stated  the  objections  to  his  own  proposition  with 
very  considerable  completeness  and  attempted  to  answer 
them,  it  may  be  worth  while  to  quote  his  words.  He 
said: 

To  this  measure,  not  only  the  Briton  but  the  American  also 
now  objects,  that  it  is  unnecessary,  inexpedient  and  danger- 
ous.    But  let  us  consider  their  several  objections. 

The  Briton  says  that  such  measure  is  unnecessary,  because 
the  power  of  Parliament  extends  to  all  cases  and  purposes 
required.  Be  it  allowed  that  this  power  does,  in  right  and 
theory,  thus  extend;  yet  surely  the  reasoning,  the  precedents, 
the  examples,  and  the  practice  of  administrations  do  show, 
that  something  more  is  necessary  in  this  case. 

The  American  says  it  is  unnecessary,  because  they  have 
Legislatures  of  their  own,  which  answer  all  their  purposes. 
But  each  Colony  having  rights,  duties,  actions,  relations, 
which  extend  beyond  the  bounds  and  jurisdiction  of  their  re- 
spective communities,  beyond  the  power  of  their  respective 
Governments,  the  Colonial  Legislature  does  certainly  not  an- 
swer all  purposes, — is  incompetent  and  inadequate  to  many 
purposes.  Something  more  therefore  is  necessary,  either  a 
common  union  amongst  themselves,  or  a  one  common  union  of 
subordination,  under  the  one  General  Legislature  of  the  State. 

The  Briton  says  that  it  would  be  inexpedient  to  participate 
with,  and  communicate  to  the  colonists,  the  rights  and  privi- 
leges of  a  subject  living  and  holding  his  property  within  the 
Realm, — to  give  these  rights  to  people  living  out  of  the  Realm, 
and  remote  from  it,  whose  interests  are  rival  and  contrary, 
both  in  trade  and  dominion,  to  those  of  this  Realm.  But  the 
scheme  of  giving  representatives  to  the  Colonies,  annexes 
them  to,  and  incorporates  them  with  the  Realm.  Their  in- 
terest is  contrary  to  that  of  Great  Britain,  only  so  long  as  they 
are  continued  in  the  unnatural  artificial  state  of  being  con- 
sidered as  external  Provinces;  and  they  can  become  rivals 
only  by  continuing  to  increase  in  this  separate  state.  But 
their  being  united  to  the  Realm,  is  the  very  remedy  proposed. 

The   American   says,    that   this   measure    is    inexpedient; 


204  The  Administration  of  Dependencies 

because,  if  the  Colonies  be  united  to  the  Realm,  and  have  par- 
ticipation in  the  Legislature,  and  communication  of  the  rights 
and  privileges  of  a  subject  within  the  Realm,  they  must  be 
associated  in  the  burden  of  the  taxes,  and  so  pay  a  share  of 
the  interest  and  principal  of  the  national  debts,  which  they 
have  no  concern  in.  This  is  literally  the  objection  which 
was  made  by  the  Scots,  at  the  proposal  of  the  Union  of  the 
two  Kingdoms;  and  came  indeed  with  reason  and  propriety 
from  an  independent  sovereign  Kingdom,  which  had  no  con- 
cern in  the  debts  of  England.  But  the  like  objection  can 
never  be  made  with  propriety,  reason  or  justice,  by  Colonies 
and  Provinces  which  are  constituent  parts  of  a  trading  nation, 
protected  by  the  British  marine.  Much  less  can  it  be  said, 
that  they  have  no  concern  in  these  debts,  when  they  are  debts 
contracted,  by  wars  entered  into,  the  first  for  the  preservation 
of  the  Protestant  interest  and  independency  of  the  sovereignty 
of  the  Mother  Country;  the  two  latter,  solely  in  defence,  and 
for  the  protection  of  the  trade  and  actual  existence  of  the 
Colonies.  However,  if  the  Colonies  could,  on  any  reasonable 
grounds  of  equity  or  policy,  show  any  inequality,  or  even  in- 
expediency in  their  paying  any  part  of  the  taxes  which  have 
a  retrospect  to  times  before  they  were  admitted  to  a  share  in 
the  Legislature,  there  is  no  doubt  but  that  the  same  moderation 
and  justice  which  the  Kingdom  of  England  showed  towards 
Scotland,  in  giving  that  an  equivalent,  would  be  extended  to 
the  Colonies,  by  the  Kingdom  of  Great  Britain.  And  I  can- 
not but  think,  that  it  would  not  be  more  than  such  equivalent, 
that  the  Government  should  grant  them  a  sum  of  money  suffi- 
cient to  pay  off  all  their  debts  which  were  contracted  in  con- 
sequence of  the  last  war,  and  are  still  outstanding;  unless 
Great  Britain  engaged  from  henceforth  to  consider  these  as 
the  debts  of  the  State  in  general.  I  cannot  but  think  that  it 
would  not  be  more  than  such  equivalent,  that  the  Crown 
should  give  up  all  its  right  to  quit-rents,  and  that  every  Act, 
whereby  any  special  revenue  was  raised  upon  the  Colonies, 
should  be  repealed. 

The  Briton  says  that  this  measure  would  be  dangerous;  as 
it  might  prove  a  leading  step  to  the  finally  removing  of  the 


Imperial  Unity,  1768  205 

seat  of  empire  to  America;  to  which  the  true  answer  is 
that  the  removal  of  the  seat  of  empire  to  America  or  not, 
depends  on  the  progressive  increase  of  the  territories,  trade 
and  power  of  the  American  Colonies; — if  continued  in  the 
same  unnatural,  separate,  rival  and  dangerous  state  in  which 
they  are  at  present,  that  this  is  an  event  not  to  be  avoided. 
But  this  measure  of  uniting  the  Colonies  to  the  Realm,  and  of 
fixing  the  Legislature  here  in  Britain,  is  the  only  policy  that  can 
obviate  and  prevent  this  removal.  For,  by  concentring  the 
interest  and  power  of  the  several  parts  in  this  Island,  the  Em- 
pire must  be  fixed  here  also.  But  if  this  removal  cannot 
finally  be  prevented,  is  it  better  that  a  new  Empire  should 
arise  in  America,  on  the  ruins  of  Great  Britain,  or  that  the 
regalia  of  the  British  Empire  extending  to  America,  should 
be  removed  only  to  some  other  part  of  the  dominions,  con- 
tinuing, however,  in  the  same  Realm  ? 

The  American  says  that  this  measure  might  be  dangerous 
to  their  liberties;  as  this  calling  the  American  representatives 
to  a  Parliament  sitting  in  Great  Britain  would  remove  their 
representatives  at  too  great  a  distance  from  their  constituents, 
for  too  long  a  time,  and  consequently  from  that  communica- 
tion and  influence  which  their  constituents  should  have  with 
them;  and  therefore  transfer  the  will  of  the  Colonies  out  of 
their  own  power,  involving  it,  at  the  same  time,  in  a  majority, 
against  which  their  proportion  of  representatives  would  hold 
no  balance.  This  objection,  if  it  has  any  ground  for  its 
fears,  is  a  direct  answer  to  the  British  objection  last  men- 
tioned. But  it  proves  too  much,  as,  according  to  this  argu- 
ment, no  remote  parts  of  a  State  ought  to  send  representatives, 
as  the  seat  of  empire  is  also  remote.  The  truth  and  fact  is, 
that  the  mutual  situation  of  Great  Britain  and  America  very 
well  allows  every  communication  which  a  member  of  Parlia- 
ment ought  to  have  with  his  constituents;  and  any  influence 
beyond  that,  is  unparliamentary  and  unconstitutional. 

As  to  all  objections  which  arise  from  apprehensions  of 
what  effect  such  an  additional  number  of  members,  acceding 
all  at  once  to  the  House  of  Commons,  might  have  on  the  poli- 
tics, conduct  and  internal  management  of  that  body:     .     .     . 


2o6  The  Administration  of  Dependencies 

The  Americans  fear  that  the  number  of  representatives  which 
will  be  allowed  to  them,  will  have  no  power  proportionable  to 
their  share  of  interest  in  the  community,  that  this  union  to  the 
British  Legislature  will  only  involve  them  in  the  conclusions 
of  a  majority,  which  will  thence  claim  a  right  to  tax  them,  and 
to  restrain  their  trade,  manufactures  and  settlements  as  they 
please.  The  Briton  fears  that  these  representatives  may  be 
an  united  phalanx,  firmly  opposing  every  tax  proposed  to  be 
laid  upon  the  Colonies,  and  every  regulation  meant  to  keep 
their  actions  and  interest  in  due  subordination  to  the  whole; 
that  they  will  be  a  party,  a  faction,  a  flying  squadron,  always 
ready,  and  in  most  cases  capable,  by  uniting  with  opposition 
to  Administration,  or  with  commercial  factions,  to  distress 
Government  and  the  landed  interest  of  the  Kingdom.  The 
Americans  again,  on  the  other  hand,  fear  that  some  future 
British  Ministry,  in  some  future  days  of  corruption,  will  suc- 
ceed in  bribing  their  representatives,  against  which  the  Colonies 
will  have  no  remedy,  but  must  submit  to  the  betraying  conse- 
quences. These  are  objections  which,  on  the  very  supposi- 
tion, mutually  counteract  and  destroy  one  another.  They 
are  objections  which  have  had  fair  trial  upon  experience,  in 
the  case  of  the  Scots  members,  and  are  directly  contradicted 
by  truth  and  fact. 

Neither  Bernard's  nor  Pownall's  proposition  seems  to 
have  ever  made  any  impression  either  in  America  or 
Great  Britain. 

For  the  Colonies  to  have  exchanged  their  positions  as 
States  constituting  component  parts  of  the  British  Em- 
pire, subordinated  to  Great  Britain,  and  its  Government, 
as  a  Central  Tribunal  sitting  to  determine,  through  ex- 
perts, on  just  principles,  their  rights  and  the  rights  of  their 
inhabitants,  in  the  great  political  organism,  before  which 
Tribunal  they  vi^ere  represented  by  their  Agents,  who 
were  heard  before  any  dispositions  made  affecting  their 
interests  became  final,  for  a  position  in  which  they  would 
have  been  States  in  a  condition  of  contractual  subjection 
to  the  mere  will  of  Great  Britain,  and  its  Government,  ex- 


Imperial  Unity,  1768  207 

cept  in  so  far  as  it  had  agreed  they  should  not  be,  or  for 
a  position  in  which  their  inhabitants  would  have  consti- 
tuted an  integral  part  of  the  whole  population  subject  to 
the  unconditioned  and  unlimited  will  of  a  Parliament,  in 
the  Lower  House  only  of  which  they  were  represented, 
sitting  three  thousand  miles  away  in  England, — would 
have  been  for  them  to  commit  political  suicide. 

Nor  had  England  anything  to  gain  from  the  adoption 
of  either  Bernard's  or  Pownall's  idea  of  the  relationship. 
The  relationship  advocated  by  Bernard  would  have  lasted 
exactly  as  long  as  the  Colonies  were  too  weak  to  require 
something  better.  That  any  population  should  in  any 
respect  submit  to  the  unconditional  and  unlimited  power 
of  any  body  of  people  over  which  they  had  no  control,  if 
they  could  help  it,  was  inconceivable.  If  the  Colonies 
should  ever  become  the  stronger  party,  it  was  likely  to 
go  hard  with  Great  Britain^  The  relationship  of  Great 
Britain  to  the  Colonies  advocated  by  Pownall  was  plainly 
dangerous  for  Great  Britain,  as  he  himself  admits,  for  it 
based  the  whole  power,  in  the  long  run,  on  population, 
or  on  wealth  and  population  combined,  and,  if  America 
ever  exceeded  Great  Britain  in  wealth  and  population, 
inevitably  resulted  in  the  removal  of  the  Seat  of  Em- 
pire to  America. 

Under  the  Imperial  Federal  Unity  that  really  existed, 
Great  Britain  could  retain  its  position  as  the  Imperial 
State  so  long  as  its  Government  was  best  fitted  to  act  as 
the  Central  Tribunal  for  the  Colonies  as  States  — that  is, 
so  long  as  it  was  best  fitted  to  make  dispositions  con- 
cerning their  affairs,  and  needful  rules  and  regulations 
respecting  them  and  their  inhabitants  in  accordance  with 
its  dispositions. 


CHAPTER   XII 

THE   IMPERIAL   SECRETARIAT,   1/68 

THOUGH  Pownall's  work  was  ineffective  in  so  far  as 
he  tried  to  convert  the  English  and  American  peo- 
ple to  the  idea  that  that  which  had  existed  for  a 
century  and  a  half  as  the  British  Empire  was  really  a 
British  Unitary  State,  it  had,  in  another  direction,  an 
immediate  and  direct  result.  The  real  purpose  of  his 
book,  as  it  was  originally  written,  was  to  advocate  a 
reform  in  the  Home  Administration  of  the  Empire. 
The  important  point  that  he  made  was  that  the  business 
of  the  British  State  relating  to  the  Empire  in  America — 
that  is,  the  relations  between  Great  Britain  and  the  Col- 
onies— ought  properly  to  be  in  the  charge  of  a  Secretary 
of  State.  This  amounted  to  saying  that  the  relations 
with  the  Colonies  were,  by  the  nature  of  things,  differen- 
tiated from  both  the  domestic  and  the  foreign  relations  of 
Great  Britain,  since  a  Secretariat  of  State  is  one  of  the 
great  and  fundamental  Departments  of  the  business  of  the 
State,  which  exists  because  of  the  permanent  and  funda- 
mental differences  in  the  functions  of  the  State  in  some  of 
its  relations  from  those  which  it  has  in  other  relations. 
This  proposition  of  Pownall's  brought  into  clear  light  a 
distinction  regarding  the  functions  of  the  State,  which, 
though  acted  upon  from  the  time  when  the  relations  with 
the  dependencies  were  placed  in  the  advisory  charge  of  a 
Committee  of  the  Privy  Council  distinct  from  the  Com- 
mittee having  charge  of  either  the  domestic  or  foreign 
affairs  of  the  State,  had  never  been  clearly  stated.     It 

208 


The  Imperial  Secretariat,  1768        209 

meant  that  thereafter  the  British  State  was  to  be  recog- 
nized as  the  subject  and  object  of  a  new  class  of  obliga- 
tions. Up  to  that  time,  only  two  classes  of  obligations 
to  which  the  State  was  subject  in  time  of  peace  had  been 
recognized  —  obligations  which  it  owed  to  its  own  in- 
habitants and  municipal  corporations,  which  it  per- 
formed through  the  instrumentality  of  a  Secretary  or  a 
Secretarial  Board  for  Home  Affairs,  and  those  which  it 
owed  to  foreign  States  and  their  inhabitants  and  muni- 
cipal corporations,  which  it  performed  through  the  instru- 
mentality of  a  Secretary  or  Secretarial  Board  for  Foreign 
Affairs.  The  obligations  of  the  State  to  its  own  inhabi- 
tants and  municipal  corporations  were  determined  by  its 
Constitution,  by  the  unwritten  law,  and  by  the  will  of  its 
Legislature;  its  obligations  to  foreign  States  and  their 
inhabitants  and  municipal  corporations  were  determined 
by  treaty  or  by  the  rules  of  international  law.  The 
proposition  to  place  the  relations  between  Great  Britain 
and  the  American  Colonies  in  the  charge  of  a  Secretariat 
of  State,  therefore  necessarily  implied  that  the  Colonies 
were  neither  integral  parts  of  the  Realm  nor  foreign 
States,  and  that  the  relations  between  them  were  neither 
domestic  nor  foreign  relations,  but  were  of  a  different 
kind  from  either,  to  be  determined  neither  by  the  Con- 
stitution, the  unwritten  law,  or  the  statutes  of  the  State, 
nor  by  treaties  or  the  international  law,  but  by  an  equity 
derived  from  all  these,  as  principles. 

At  the  time  Pownall  wrote,  though  the  difference  in 
functions  between  the  Home  Department  and  the  For- 
eign Department  was  recognized,  there  did  not  exist 
in  Great  Britain  a  Home  Secretary  and  a  Foreign 
Secretary  having  charge  of  the  respective  duties  of  these 
Departments.  There  were  two  Principal  Secretaries 
of  State,  but  their  duties  were  determined  arbitrarily  and 
geographically,  instead  of  rationally  and  scientifically. 
One  Secretary  had  charge  of  what  was  called  the  Northern 


2IO  The  Administration  of  Dependencies 

Department,  including  Denmark,  Flanders,  Germany, 
the  German  Principalities  and  States,  Holland,  Poland, 
Saxony,  Prussia,  Russia,  and  Sweden ;  and  the  other  of 
the  Southern  Department,  which  included  England,  Scot- 
land, Ireland,  the  Channel  Islands,  the  Isle  of  Man,  the 
other  islands  near  Great  Britain,  the  American  and  West 
Indian  Colonies,  the  East  Indian  establishments,  France, 
Spain,  Portugal,  Switzerland,  Italy,  the  Barbary  States, 
and  Turkey.  The  Secretary  of  State  for  the  Southern 
Department  was  thus  the  Secretary  of  State  for  Home 
and  Imperial  Affairs  and  in  part  for  Foreign  Affairs; 
and  the  Secretary  for  the  Northern  Department  the 
Secretary  in  part  for  Foreign  Affairs. 

In  advocating  the  establishment  of  a  Secretariat  of 
State  to  have  charge  of  the  relations  with  the  Colonies, 
Pownall  said : 

The  forming  some  general  system  of  administration,  some 
plan  which  should  be  (whatever  may  be  the  changes  of  the 
Ministry  at  home,  or  in  the  Governors  and  officers  employed 
abroad)  uniformly  and  permanently  pursued  by  measures 
founded  on  the  actual  state  of  things  as  they  arise,  leading  to 
this  great  end,  is,  at  this  crisis,  the  precise  duty  of  Govern- 
ment. 

To  enable  the  British  nation  to  profit  of  these  present  cir- 
cumstances, or  of  the  future  events,  as  they  shall  successively 
arise  in  the  natural  procession  of  effects,  it  is  necessary  that 
the  Administration  form  itself  into  such  establishments  for  the 
direction  of  these  interests  [the  British  commercial  interests] 
and  powers,  as  may  keep  them  [the  Colonial  commercial  in- 
terests then  beginning  to  arise]  in  their  natural  channel,  as  may 
maintain  their  due  connections  with  the  Government,  and 
lead  them  to  the  utmost  effect  they  are  capable  of  producing 
towards  this  grand  point. 

The  first  spring  of  this  direction,  the  basis  of  this  govern- 
ment, is  the  Administration  at  home.     If  that  Department  of 


The  Imperial  Secretariat,  1768        211 

the  Administration  which  should  have  the  direction  of  these 
matters,  be  not  wisely  and  firmly  bottomed,  be  not  so  built, 
as  to  be  a  practical — be  not  so  really  supported  by  the  powers 
of  the  Government,  as  to  be  an  efficient  Administration,  all 
measures  for  the  administration  of  these  interests,  all  plans 
for  the  government  of  these  powers  are  vain  and  self-delusive; 
even  those  measures  that  would  regulate  the  movements  and 
unite  the  interests  under  a  practical  and  efficient  Administra- 
tion, become  mischievous  meddling  impertinences  where  that 
is  not,  and  must  either  ruin  the  interests  of  these  powers,  or 
render  a  breach  of  duty  necessary  to  the  Colonies  that  they 
may  avoid  that  ruin. 

That  part  of  the  Government,  which  should  administer  this 
great  and  important  branch  of  business,  ought,  in  the  first 
place,  to  be  the  center  of  all  information  and  application  from 
all  the  interests  and  powers  which  form  it;  and  ought  from 
this  center,  to  be  able,  fully,  uniformly,  and  efficiently,  to  dis- 
tribute its  directions  and  orders.  Wherever  the  wisdom  of 
State  shall  determine  that  this  center  of  information  shall  be 
fixed;  from  whatever  Department  all  appointments,  orders, 
and  executive  administration  shall  issue,  it  ought  somewhere 
to  be  fixed,  known,  of  record,  and  undivided.  That  it  may 
not  be  partial,  it  ought  to  extend  to  all  times,  and  all  cases. 
All  application,  all  communication,  all  information  should 
center  immediately  and  solely  in  this  Department.  This 
should  be  the  spring  of  all  nominations,  instructions,  and 
orders.  It  is  of  little  consequence  where  this  power  of  admin- 
istration is  placed,  so  that  the  Department  be  such  as  has  the 
means  of  the  knowledge  of  its  business,  is  specially  appro- 
priated to  the  attention  necessary  to  it,  and  officially  so  formed 
as  to  be  in  a  capacity  of  executing  it.  Whether  this  be  a 
Secretary  of  State,  or  the  Board  of  Trade  and  Plantations,  is 
of  no  consequence;  but  it  ought  to  be  entirely  in  either  the 
one  or  the  other.  Where  the  power  for  the  direction  is  lodged, 
there  ought  all  the  knowledge  of  the  Department  to  center; 
therefore  all  officers,  civil  or  military,  all  servants  of  the 
Government,  and  all  other  bodies  or  private  persons  ought  to 
correspond  immediately  with  this  Department,  whether  it  be 


212  The  Administration  of  Dependencies 

the  Secretary  of  State  or  the  Board  of  Trade.  While  the 
military  correspond  with  the  Secretary  of  State,  the  civil  in  one 
part  of  their  office  with  the  Secretary  of  State,  in  another  with 
the  Board  of  Trade;  while  the  navy  correspond  in  matters  not 
merely  naval  with  the  Admiralty,  while  the  engineers  corre- 
spond with  the  Board  of  Ordnance,  officers  of  the  revenue 
with  the  several  Boards  of  that  branch,  and  have  no  com- 
munication with  the  Department  which  has,  or  ought  to  have, 
the  general  direction  and  administration  of  this  great  Atlantic 
and  American,  this  great  commercial  interest,  who  is  to  col- 
lect— who  does,  or  ever  did  collect — into  a  one  view,  all 
these  matters  of  information  and  knowledge  ?  What  Depart- 
ment ever  had,  or  could  have,  such  general  direction  of  it,  as 
to  discuss,  compare,  rectify  and  regulate  it  to  an  official  real 
use  ?  In  the  first  place,  there  never  was  yet  any  one  Depart- 
ment formed  for  this  purpose;  and  in  the  next,  if  there  was, 
let  any  one  acquainted  with  business  dare  to  say,  how  any  at- 
tempt of  such  Department  would  operate  on  the  jealousies  of 
the  others.  Whenever,  therefore,  it  is  thought  proper,  (as 
most  certainly  it  will,  some  time  or  other,  though  perhaps  too 
late),  to  form  such  Department,  it  must  (if  I  may  so  express 
myself)  be  sovereign  and  supreme,  as  to  every  thing  relating 
to  it;  or  to  speak  plainly  out,  must  be  a  Secretary  of  State's 
office  in  itself.  When  such  is  formed,  although  the  military, 
naval,  ordnance,  and  revenue  officers  should  correspond,  in 
the  matters  of  their  respective  duties,  with  the  Departments 
of  the  Government  to  which  they  are  more  immediately  sub- 
ordinate and  responsible,  yet,  in  general  matters  of  informa- 
tion, or  points  which  are  matters  of  government,  and  the 
department  of  this  State  Office,  they  should  be  instructed  to 
correspond  and  communicate  with  this  Minister.  Suppose  that 
some  such  Minister  or  Office  now  existed,  is  it  not  of  conse- 
quence that  he  should  be  acquainted  with  the  geography  of 
our  new  acquisitions  ?  If,  therefore,  there  have  been  any 
actual  surveys  made  of  them,  should  not  such,  or  copies  of 
such,  be  sent  to  this  Minister  or  Office  ?  If  a  due  and  official 
information  of  any  particular  conduct  in  our  Colonies,  as  to 
their  trade,  might  lead  to  proper  regulations  therein,  or  might 


The  Imperial  Secretariat,  1768        213 

point  out  the  necessity  of  a  revision  of  the  old  laws,  or  the 
making  further  provision  by  new  ones,  would  it  not  be  proper 
that  the  Custom  House  officers  settled  there  should  be  directed 
to  correspond  and  communicate  with  this  Minister,  or  Office, 
on  these  points  ?  Would  it  interfere  with  their  due  sub- 
ordination, as  officers  of  the  revenue,  to  the  Commissioners  of 
the  Customs  ?  If  there  were  any  events  arising,  or  any  cir- 
cumstances existing,  that  might  affect  the  state  of  war  or  peace, 
wherein  the  immediate  application  of  military  operations  were 
not  necessary  or  proper,  should  not  the  military  and  naval 
officers  be  directed  to  communicate  on  these  matters  with  this 
Minister,  or  Office  ?  Should  not,  I  say,  all  these  matters  of 
information  come  officially  before  this  Minister,  if  any  such 
State  Minister,  or  Office,  was  established  ? 

As  of  information  and  knowledge  centering  in  a  one  Office, 
so  also  of  power  of  executing,  it  should  spring  from  one  un- 
divided Department.  Where  the  power  of  nominating  and 
dismissing,  together  with  other  powers,  is  separated  from  the 
power  of  directing,  the  first  must  be  a  mere  privilege  or  per- 
quisite of  office,  useless  as  to  the  King's  business  or  the  interest 
of  his  Colonies,  and  the  latter  must  be  inefficient.  That  Office, 
which  neither  has  the  means  of  information,  nor  can  have 
leisure  to  attend  to  the  official  knowledge  produced  thereby, 
nor  will  be  at  the  trouble  to  give  any  official  directions  as  to 
the  ordinary  course  of  the  administration  of  the  American 
matters,  must  certainly  be  always,  as  it  is,  embarrassed  with 
the  power  of  nomination,  and  fettered  with  the  chain  of  ap- 
plications which  that  power  drags  after  it.  On  the  other  hand, 
what  effect  will  any  instructions,  orders  or  directions  have 
from  that  Board,  which  has  not  interest  to  make  or  dismiss  one 
of  the  meanest  of  its  own  officers  ?  This,  which  is  at  present 
the  only  official  channel,  will  be  despised;  the  Governors,  nay, 
every  the  meanest  of  the  officers  in  the  Plantations,  looking 
up  solely  to  the  giving  power,  will  scarce  correspond  with  the 
directing, — nay,  may  perhaps  contrive  to  make  their  court  to 
the  one,  by  passing  by  the  other.  And  in  any  case  of  im- 
proper conduct  of  these  officers,  of  any  neglect  of  duty,  or 
even  of  misdemeanor,  what  can  this  directing  power  do,  but 


2  14  The  Administration  of  Dependencies 

complain  to  the  Minister  who  nominates,  against  the  officers 
appointed  by  him  ?  If  there  be  no  jealousies,  no  interfering 
of  interests,  no  competitions  of  interfering  friends,  to  divide 
and  oppose  these  two  Offices  to  each  other;  if  the  Minister  is 
not  influenced  to  continue,  upon  the  same  motives  upon 
which  he  first  appointed;  if  he  does  not  see  these  complaints 
in  a  light  of  opposition  to  his  nomination  and  interest, — some 
redress  may,  after  a  due  hearing  between  the  party  and  the 
Office,  be  had,  the  authority  of  the  Board  may  be  supported, 
and  a  sort  of  remedy  applied  to  the  special  business,  but 
a  remedy  worse  than  the  disease, — a  remedy  that  dishonors 
that  Board,  and  holds  it  forth  to  the  contempt  of  those  whom 
it  ought  to  govern. 

Although  Pownall  had  expressed,  in  the  words  above 
quoted,  his  conviction  that  it  made  no  difference  vi^hether 
the  Secretariat  for  Imperial  Affairs  were  vested  in  a  single 
individual  or  in  a  Secretarial  Board,  he  showed,  in  the 
first  edition  of  his  book,  a  plain  preference  for  a  Secre- 
tarial Board,  and  made  a  strong  argument  in  favor  of 
converting  the  Board  of  Trade  and  Plantations  into  this 
Secretarial  Board.     On  this  subject  his  words  were: 

It  is  not  only  from  the  natural  impracticability  of  conduct- 
ing this  administration  under  a  divided  state  of  power  and 
direction,  that  the  necessity  of  forming  a  some  one  State  Office, 
or  Minister  of  State,  for  the  executing  it,  arises:  but  the  very 
nature  of  the  business  of  this  Department,  makes  the  officer 
who  is  to  administer  it  a  State  Officer,  a  Minister  for  that 
Department,  and  who  ought  to  have  immediate  access  to  the 
closet,  I  must  here  repeat,  that  I  am  no  partisan  of  the 
Secretary  of  State's  office,  or  for  the  Board  of  Trade:  1  have 
ceased  to  have  any  connection  of  business  with  either,  and 
have  not  the  least  degree  of  communication  with  the  one  or 
the  other.  Without  reference,  therefore,  to  either,  but  with 
all  deference  to  both,  I  aim  to  point  out,  that  the  Department 
of  the  Administration  of  Trade  and  Plantations,  be  it  lodged 
where  it  may,  should  be  a  State  Office,  and  have  a  Minister 


The  Imperial  Secretariat,  1768        215 

of  State.  That  Office,  or  Officer,  in  a  commercial  nation  like 
this,  who  has  the  cognizance  and  direction  (so  far  as  the 
Government  can  interfere)  of  the  general  trade  of  the  King- 
dom— whose  duty  it  is  to  be  the  depository  and  reporter  of 
the  state  and  condition  of  it,  of  everything  which  may  ad- 
vance or  obstruct  it,  of  the  state  of  manufactures,  of  the 
fisheries,  of  the  employment  of  the  poor,  of  the  promoting  the 
labor  and  riches  of  the  country,  by  studying  and  advising 
every  advantage  that  can  be  made  of  every  event  which  arises 
in  commercial  politics  and  every  remedy  which  can  remove 
any  defect  or  obstruction, — who  is  officially  to  prepare  every 
provision  or  revision  necessary  in  the  laws  of  trade,  for  the 
consideration  of  Parliament,  and  to  be  the  conductor  of  such 
through  the  necessary  measures, — is  certainly  an  Officer  of 
State,  if  the  Secretary  of  State,  so-called,  is.  That  Office,  or 
Officer,  who  has  cognizance  and  direction  of  the  Plantations 
in  every  point  of  government,  in  every  matter  judicial  or  com- 
mercial,— who  is  to  direct  the  settlements  of  colonies,  and  to 
superintend  those  already  settled,  —  who  is  to  watch  the 
Plantations  in  all  these  points,  so  far  as  they  stand  related  to 
the  government,  laws,  courts  and  trade  of  the  Mother  Country 
— is  certainly  an  Officer  of  State,  if  the  Secretary  of  State, 
so-called,  is.  That  Office,  or  Officer,  who  is  to  report  to  his 
Majesty  in  Council  on  all  these  points,  whose  official  fiat,  or 
negative,  will  be  his  Majesty's  information  in  Council  as  to 
the  legislature  in  the  Colonies,  is  certainly  an  Officer  of  State. 
That  Office,  or  Officer,  who  is  to  hear  and  determine  on  all 
matters  of  complaint,  and  maladministration,  of  the  Crown 
officers  and  others,  in  the  Plantations,  and  can  examine  wit- 
nesses on  oath,  is  surely  an  Officer  of  State.  That  Office,  or 
Officer,  who  is  to  correspond  with  all  the  servants  of  the 
Crown  on  these  points,  and  to  be  the  issuer  of  his  Majesty's 
orders  and  instructions  to  his  servants,  on  these  many,  great, 
and  important  points  of  State — is  certainly  his  Majesty's  Sec- 
retary, and  certainly  a  Secretary  of  State. 

But  if  it  be  considered  further,  who  the  persons  are,  that 
are  of  this  very  great  and  extensive  Commission  of  the  Board 
of  Trade  and  Plantations, — namely,  all  the  great  Officers  of 


2i6  The  Administration  of  Dependencies 

State  for  the  time  being,  with  the  Bishop  of  London,  the  Sec- 
retaries of  State  for  the  time  being,  and  those  more  especially 
called  the  Commissioners  of  Trade,  it  will  be  seen,  that  it  is 
no  longer  a  doubt  or  a  question,  as  to  its  being  an  Office  of 
State,  It  is  actually  so,  and  has,  as  an  Office,  as  a  Board, 
immediate  access  to  his  Majesty  in  Council,  even  to  the  report- 
ing and  recommending  of  officers.  This  was  the  plan  whereon 
it  was  originally  founded,  at  its  first  institution,  by  Lord 
Somers. 

That  great  statesman  and  patriot  saw  that  all  the  powers  of 
the  Government  and  the  several  Departments  of  Administra- 
tion disunited,  were  interfering  with,  and  obstructing  each 
other  on  this  subject,  and  not  they  only  here  in  England,  but 
that  the  respective  Officers  of  these  several  Departments  car- 
ried all  this  distraction  into  the  detail  of  their  business  in  the 
Colonies,  which  I  am  afraid  is  too  much  the  case  even  at  this 
day:  he  saw  that  this  administration  could  not  be  conducted 
but  by  an  entire  union  of  all  the  powers  of  the  Government, 
and  on  that  idea  formed  the  Board  of  Trade  and  Plantations, 
where,  and  where  alone,  these  powers  were  united  in  a  one 
Office, —  in  which  Office,  and  in  which  alone,  all  the  business 
of  the  Colonies  ought  therefore  to  be  administered ;  for  if  such 
union  be  necessary,  here  alone  is  that  official  union.  Unhap- 
pily for  the  true  interest  of  the  Government,  partly  from  an 
entire  neglect  of  this  administration  in  time  past,  and  partly 
from  the  defective  partial  exercise  of  it,  since  some  idea  of 
these  matters  began  again  to  revive,  this  great  and  wise  plan 
hath  been  long  disused;  but  it  is  fortunate  for  the  public  in  this 
important  crisis,  that  such  is  the  temper  of  particulars,  such 
the  zeal  of  all  for  his  Majesty's  service,  such  the  union  of  his 
servants,  that  the  spirit  of  service  predominates  over  these 
natural  defects:  so  that  all  who  wish  well  to  the  interest  of  this 
country,  in  its  trade  and  colonies,  may  hope  to  see  that  union, 
at  present  only  Ministerial,  become  Official  in  this  business, 
and  revive  again  that  great,  wise,  and  constitutional  plan  of 
Office,  actuated  under  the  real  spirit  of  it. 

The  only  question  at  present  is,  who  shall  be  the  Executive 
Officer  of  this  Department  of  State;  whether  the  Secretary  of 


The  Imperial  Secretariat,  1768        217 

State,  properly  so-called;  or  the  First  Lord,  and  other  Com- 
missioners, properly  called  the  Board  of  Trade ;  or  whether  it 
shall  remain  divided,  as  it  is,  between  the  several  great  Depart- 
ments of  Administration ;  or  whether  some  more  official  and 
practical  division  of  this  administration  may  not  be  made. 

Suppose  now,  it  should  be  thought  proper,  that  this  admin- 
istration be  placed  in  the  Secretary  of  State's  office,  all  the 
administration  of  the  Plantations  may  be  given  to  the  Southern 
Department:  yet  the  great  object  of  the  general  trade  of  Great 
Britain  must  be  divided  between  the  Southern  and  the 
Northern,  as  the  matters  of  consideration  happen  to  lie  in 
the  one  or  in  the  other  Department;  and  how  will  the 
Southern  Department  act,  when  any  matter  of  commerce 
arises  in  the  Plantations,  that  has  special  connections  or  in- 
terferings  with  the  Dutch,  Hamburg,  Danish  or  Russian  trade? 

It  cannot  lie  in  the  Board  of  Trade,  properly  so-called, 
until  it  be  found  proper,  and  becomes  a  measure  of  the 
Government,  to  erect  that  Board  into  a  Secretary  of  State's 
Office  for  this  Department,  which,  first  or  last,  it  most  cer- 
tainly will  do.  That,  therefore,  the  great  business  of  Trade 
and  Plantations  may  not  run  into  confusion,  or  be  at  a  stand, 
that  it  may  be  carried  to  the  effect  proposed,  held  forth,  and 
desired  by  the  Government,  and  necessary  to  it, — all  that  can 
be  done  at  present  is,  to  put  the  whole  executive  administra- 
tion, the  nomination,  correspondence,  issuing  of  instructions, 
orders,  &c.,  under  the  Secretary  of  State,  if  he  has  leisure  to 
attend  to  it,  and  can  undertake  it;  and  to  make  the  Board  of 
Trade  a  mere  Committee  of  Reference  and  Report;  instead 
of  reporting  to  the  King  in  Council,  to  report  to  the  Secre- 
tary of  State,  who  shall  lay  the  matters  before  his  Majesty, 
and  receive  and  issue  his  orders, — who  shall  refer  all  matters 
to  this  Committee,  for  their  consideration,  and  shall  conduct 
through  the  Legislature  all  measures  necessary  to  be  deter- 
mined thereby.  If  this  be  not  practicable,  there  is  no  other 
alternative,  than  to  do  directly  what  ought  to  be  done,  and 
what,  some  time  or  other,  must  be  done, — the  making  the 
Officer  who  conducts  this  Department  a  Minister  for  that  De- 
partment, with  all  the  powers  necessary  thereto.     For  until  a 


2i8  The  Administration  of  Dependencies 

practical  and  efficient  Administration  be  formed,  whatever 
the  people  of  this  country  may  think,  the  people  of  the 
Colonies,  who  know  their  business  much  better  than  we  do, 
will  never  believe  the  Government  is  in  earnest  about 
them,  or  their  interest,  or  even  about  governing  them;  and 
will,  not  merely  from  that  reasoning,  but  from  necessity  of 
their  circumstances,  act  accordingly. 

In  1768,  Pownall  had  evidently  perceived  that  the 
Committee  of  the  Privy  Council  for  Plantation  Affairs 
was  a  factor  in  the  situation  which  had  to  be  considered, 
and  that,  since  it  had  the  immediate  access  to  the  King, 
it  must  be  abolished,  either  directly,  or  indirectly  by  con- 
verting it  into  the  Secretarial  Board,  since  so  long  as  it 
remained  in  existence  in  the  form  in  which  it  then  was, 
with  the  right  and  duty  of  advising  the  King  concerning 
rnatters  of  Imperial  administration,  any  individual  or 
body  of  individuals  having  charge  of  the  administration 
of  the  Imperial  affairs  would  be  nothing  more  than  an 
Under-Secretary.  As  that  Committee  was  too  old  an  in- 
stitution to  be  abolished,  except  by  the  indirect  method 
of  increasing  its  powers  and  thus  converting  it  into  a 
Secretarial  Board,  his  final  conclusion  seems  to  have  been 
that  the  proper  course  was  to  give  to  the  Committee  of 
the  Privy  Council  for  Plantation  Affairs  administrative  as 
well  as  deliberative  functions  and  to  make  it  the  Secre- 
tarial Board  for  Imperial  Affairs,  and  to  retain  the  Board 
of  Trade  and  Plantations  as  the  under-Secretarial  Board 
with  duties  of  examination,  reference,  and  report.  In 
the  fourth  edition  of  his  book,  therefore,  he  added  the 
following: 

Until  an  effective  administration  for  Colony  affairs  be  estab- 
lished by  the  Government,  all  plans  for  the  governing  of  those 
countries  under  any  regular  system  of  policy,  will  be  only 
matter  of  speculation,  and  become  mere  useless  opprobrious 
theory.     All   official    information    given   and  transmitted  by 


The  Imperial  Secretariat,  1768        219 

those  whose  duty  it  is  to  give  it,  will,  as  accident  shall  de- 
cide, or  as  the  connections  of  parties  shall  run,  be  received  or 
not;  nay,  it  may  so  happen,  that  those  ofificers  who  should 
duly  report  to  the  Government  the  state  of  these  matters,  will, 
as  they  find  themselves  conscientiously  or  politically  disposed, 
direct  that  information  to  those  who  are  in,  or  to  those  who 
are  out  of  the  Administration.  Every  leader  of  every  little 
flying  squadron  will  have  his  runner,  his  own  proper  channel 
of  information,  and  will  hold  forth  his  own  importance  in 
public,  by  bringing  his  plan  for  American  affairs  before  it. 
All  true  and  regular  knowledge  of  these  affairs  being  dispersed, 
will  be  evaporated;  every  Administration,  even  Parliament 
itself,  will  be  distracted  in  its  councils  by  a  thousand  odds 
and  ends  of  proposals,  by  a  thousand  pieces  and  parcels  of 
plans,  while  those  surely,  who  are  so  deeply  concerned  as  the 
Americans  themselves  are,  will  not  be  excluded  from  having 
their  plan  also;  they  will  have  their  plan  also,  for  however 
peaceably  they  may  submit  to  the  direction  of  the  powers  of 
the  Government,  derived  through  a  regular  established  per- 
manent mode  of  administration,  they  will,  by  any  means  that 
they  can  justify,  refuse  to  have  their  interests  directed  and 
disposed  of  by  every  whim-  that  every  temporary  empiric  can 
force  into  execution.  If  therefore  we  mean  to  govern  the 
Colonies,  we  must  previously  form  at  home  some  practical 
and  efficient  administration  for  Colony  affairs. 

Before  the  erection  of  the  Board  of  Trade  as  a  particular 
Office,  the  business  of  the  Colonies  was  administered  with 
efficiency;  the  King  himself  in  Council  administered  the 
government  of  his  Colonies;  each  State  Officer,  in  his  proper 
Department,  was  no  otherwise  Minister  than  as  ministerially 
executing  the  orders  which  he  received,  or  officially  reporting, 
from  his  respective  Department,  the  information  which  he  had 
to  lay  before  the  King  in  Council.  Since  the  establishment  of 
that  Office  called  the  Board  of  Trade,  the  administration  of 
the  Colonies  has  either  laid  dormant,  or  been  overlaid;  or, 
if  taken  up,  become  an  occasion  of  jealousy  and  struggle  for 
power  between  that  Board  and  every  State  Officer  who  hath 
been  deemed  the  Minister  for  the  time  being.     From  this 


220  The  Administration  of  Dependencies 

jealousy  and  this  struggle,  this  Board  has  been  supposed 
to  interfere  at  different  times  with  every  other  Office, 
while  at  one  time  it  has  had  the  powers  and  held  the 
port  of  a  Minister's  Office,  and  at  another  has  become  a  mere 
Committee,  inefficient  as  to  execution,  unattended  to  as  report- 
ing. The  Colonies,  and  the  officers  of  the  Colonies,  have  one 
while  been  taught  to  look  up  to  this  Board  as  the  Minister  for 
their  affairs,  and  at  another,  have  learned  to  hold  it  in  that 
contempt  which  inefficiency  gives;  which  contempt,  however, 
has  not  always  stopped  there. 

To  prevent,  on  this  critical  occasion,  all  such  appearances, 
on  one  hand,  from  misleading  those  who  are  to  be  governed, 
and  to  put  an  end,  on  the  other,  to  all  interfering  amongst 
those  who  are  to  govern  in  this  line  of  business,  the  Board  of 
Trade  should  either  be  made  what  it  never  was  intended  to  be, 
a  Secretary  of  State's  Office  for  the  Plantations,  or  be  con- 
fined to  what  it  really  is,  a  Committee  of  Reference  for 
examination  and  report,  for  stating  and  preparing  business, 
while  the  affairs  of  the  Colonies  are  administered  solely  by  the 
King  in  Council,  really  acting  as  an  efficient  Board  for  that 
purpose.  Somewhere  there  ought  to  be  an  efficiency,  and  in 
this  Supreme  Board  is  the  proper  residence  of  it.  To  place  it 
here  would  be  really  and  in  fact  the  establishing  of  an  Admin- 
istration for  Colony  Affairs. 

This  conclusion  of  Pownall's — that  the  Committee  of 
the  Privy  Council  for  Plantation  Affairs  should  be  con- 
verted into  the  Secretarial  Board  for  Imperial  Affairs,  and 
the  Board  of  Trade  and  Plantations  declared  the  under- 
Secretarial  Board  to  examine  into  Imperial  questions  on 
their  ovirn  motion  or  on  reference  and  to  report  to  the 
Secretarial  Board — was  a  strictly  scientific  solution  of  the 
whole  problem.  It  of  course  required,  in  order  to  com- 
plete the  organization  of  the  Government,  the  establish- 
ment of  a  Secretariat  for  Home  Affairs  and  a  Secretariat 
for  Foreign  Affairs — the  Home  Secretariat  ultimately  re- 
sponsible to  the  House  of  Commons,  the  Imperial  Sec- 


The  Imperial  Secretariat,  1768        221 

retariat  responsible  both  to  the  King  and  the  whole 
Parliament  as  representatives  of  the  Imperial  State,  and 
the  Foreign  Secretariat  responsible  to  the  King. 

This  final  recommendation  of  Pownall's  came  too  late, 
for  on  February  27,  1768,  Lord  Hillsborough,  who  had 
previously  been  the  President  of  the  Board  of  Trade  and 
Plantations,  was  commissioned  as  "Secretary  of  State  for 
the  Colonies" — not  because  it  was  the  intention  of  the 
British  Government  to  recognize  the  Colonies  as  States 
united,  as  such,  in  a  relationship  of  political  subordina- 
tion, to  the  State  of  Great  Britain,  and  forming  with  it  a 
Federal  Empire,  and  to  provide  for  the  application  of 
just  principles  to  the  exercise  of  the  functions  of  Great 
Britain,  as  the  Imperial  State,  but  because,  as  the 
Letters  Patent  containing  the  Commission  stated,  "the 
public  business  of  the  Colonies  and  Plantations  increas- 
ing, it  is  expedient  to  appoint  one  other  Principal 
Secretary  of  State,  besides  the  two  ancient  Principal 
Secretaries." 

As  the  Committee  of  the  Privy  Council  for  Plantation 
Affairs  and  the  Board  of  Trade  and  Plantations  were  still 
left  in  existence,  the  only  effect  of  the  appointment  of  a 
Secretary  of  State  for  the  Colonies  was  to  make  this  Sec- 
retary an  Under-Secretary  for  Imperial  Affairs,  along  with 
the  Board  of  Trade  and  Plantations,  except  in  so  far  as 
he  could  succeed  in  inducing  the  King  to  act  directly  on 
his  advice, — which  meant  that  he  had  to  induce  the  King 
to  prevent  certain  matters  from  being  considered  by  the 
Committee  of  the  Privy  Council  for  Plantation  Affairs. 
This  was,  of  course,  a  difficult  matter,  and  as  the  Secre- 
tary of  State  for  the  Colonies  was  a  member  of  the  Cabi- 
net, and  as  the  Cabinet  was  tending  every  day  to  become 
responsible  to  the  House  of  Commons,  the  Secretary  for 
the  Colonies  was  interested,  for  his  own  aggrandizement, 
to  regard  the  affairs  of  the  Empire  as  the  affairs  of  the 
Realm  and  thus,  by  throwing  the  management  of  them 


222  The  Administration  of  Dependencies 

into  the  hands  of  Parliament,  to  free  himself  from  the  in- 
terposition of  the  Committee  of  the  Privy  Council  for 
Plantation  Affairs. 

The  title  given  to  the  incumbent  of  the  office — the  Sec- 
retary for  the  Colonies — was  unfortunate,  since  it  tended 
to  make  the  British  public  consider  the  Colonies  as  mere 
appendages  or  appurtenances  of  the  Realm,  and  to  make 
the  Americans  regard  them  as  States  foreign  to  Great 
Britain.  Had  the  officer  been  called  the  Secretary  for 
Imperial  Affairs,  and  the  Federal  Empire  of  Great 
Britain  thus  recognized,  the  duties  of  the  Secretary 
would  have  been  understood  by  all  to  be,  to  ascertain  the 
rules  and  regulations  equitably  and  justly  necessary  for 
the  common  welfare  of  the  component  parts  of  the  whole 
Empire,  considering  the  Constitution,  laws  and  economic 
conditions  of  the  Imperial  State  and  the  charters,  laws, 
customs,  and  economic  conditions  of  the  Colonies,  and 
to  advise  the  King  and  Parliament  so  that  they,  as  the 
representatives  of  the  Imperial  State,  might  cause  such 
rules  and  regulations  to  be  put  in  force. 

Pownall's  proposition  that  the  political  organism  there- 
tofore called  the  British  Empire  was  a  Unitary  State  was 
exactly  contradictory  of  his  proposition  that  there  ought 
to  be  a  special  Secretariat  of  State  having  charge  of  the 
relations  with  the  Colonies.  If  the  Colonies  were  inte- 
gral parts  of  the  British  State,  there  was  no  more  reason 
why  the  relations  with  them  should  be  placed  in  charge 
of  a  Department  of  the  Government  of  Great  Britain, 
than  that  the  relations  with  any  County  in  England 
should  be  made  a  Department  of  the  Government.  If, 
therefore,  Pownall  was  right  when  he  claimed  that  the 
affairs  of  the  Colonies  ought  to  be  in  the  charge  of  a  Sec- 
retary of  State's  office,  he  was  wrong  when  he  claimed 
that  the  Colonies  were  integral  parts  of  the  British  State, 
and  vice  versa. 

The  British   Government  followed  exactly   the   same 


The  Imperial  Secretariat,  1768        223 

course  of  inconsistency.  The  Secretary  of  State  for  the 
Colonies  was  appointed,  and  at  the  same  time  the  Colo- 
nies were  treated  by  Parliament  as  integral  parts  of  the 
Realm. 


CHAPTER   XIII 

AMERICA'S   POSITION   CRITICISED,  1769 

IN  1769,  there  appeared  in  England  an  anonymous  pam- 
phlet, entitled  The  Controversy  between  Great  Britain 
and  the  Colonies  Reviewed,  which  was  in  fact  written 
by  William  Knox,  who  had  been  attached  to  the  Colonial 
Government  of  Georgia  in  the  year  1760,  assisted  by  Hon. 
George  Grenville,  who  had  been  Prime  Minister  when  the 
Stamp  Act  was  passed.  By  this  pamphlet  the  arguments 
in  favor  of  the  proposition  that  the  British  Empire  was  a 
Unitary  State  were  put  as  strongly  as  they  possibly  could 
be.  It  was,  in  fact,  a  defence  of  the  whole  policy  of  the 
Grenville  Ministry,  and  its  purpose  was  to  show  that  that 
Administration  was  right,  and  that  its  successor,  the 
Rockingham  Ministry,  in  procuring  the  repeal  of  the 
Stamp  Act,  had  committed  a  constitutional  error. 

The  propositions  advanced  by  the  Stamp  Act  Congress, 
as  modified  by  those  advanced  by  Dickinson  in  his  Far- 
mer's Letters,  were  considered  and  answered  in  consecu- 
tive order.  Criticising  the  first  resolution  of  the  Stamp 
Act  Congress, — that  "his  Majesty's  subjects  in  these 
Colonies  owe  ...  all  due  subordination  to  that 
August  Body,  the  Parliament  of  Great  Britain,"  the  au- 
thors of  the  pamphlet  pointed  out  that  in  the  expression 
"August  Body,"  there  was  necessarily  contained  the  im- 
plication that  Great  Britain  was  a  foreign  State,  and  that 
this  proposition  was  contradictory  of  the  proposition  con- 
tained in  the  other  resolutions — that  the  inhabitants  of 
the  Colonies  were  entitled  to  all  the  rights  and  liberties 

224 


America's  Position  Criticised,  1769    225 

of  Englishmen — because  they  could  only  have  the  rights 
of  Englishmen  in  case  they  were  members  of  the  popu- 
lation of  the  State  of  Great  Britain,  and  in  that  case 
Parliament  would  be  the  "Supreme  Legislature"  of  the 
Colonies  and  their  inhabitants,  to  the  will  of  which  they 
would  owe  "obedience," — not  an  "August  Body,"  to 
which  they  would  owe  "due  subordination."  The  argu- 
ment on  this  subject  was  a  follows: 

The  title  of  "August  Body,"  which  they  give  the  Parlia- 
ment, is  another  subterfuge  for  seeming  to  respect  its  author- 
ity, whilst  they  mean  to  disavow  it.  An  "August  Body"  it 
certainly  is,  and  foreigners  frequently  call  it  so;  but  the  sub- 
jects of  the  Realm  know  it  by  another  title,  that  of  Supreme 
Legislature.  That  title  would,  however,  have  implied  obedi- 
ence to  its  laws  in  those  who  gave  it;  but  the  committees,  not 
intending  to  acknowledge  such  obedience,  avoided  giving  it 
that  title  which  is  only  proper  from  subjects,  and  gave  it  one 
which  implied  no  relation  or  dependence  on  it,  and  yet  carried 
so  much  the  appearance  of  respect,  that  it  might  be  mistaken 
to  mean  it. 

The  distinction  they  mark  in  their  resolutions  between  the 
people  of  America  and  the  people  of  England,  by  terming 
the  one  "  his  Majesty's  liege  subjects  in  the  Colonies,"  and  the 
other"  his  natural-born  subjects,"  or  his  "  subjects  born  within 
the  Realm,"  plainly,  though  indirectly,  declares  it  to  be  their 
opinion,  that  the  people  in  the  Colonies  are  not  the  King's 
"natural-born  subjects,"  or  his  "subjects  born  within  the 
Realm."  They  cannot  therefore  claim  the  rights  and  privi- 
leges of  Englishmen  from  their  being  British  subjects  in  com- 
mon with  the  people  of  England,  or  the  subjects  born  within 
the  Realm;  and  yet  no  other  title  to  those  rights  do  any  of 
them  pretend,  than  that  such  are  the  rights  and  privileges  of 
Englishmen  or  British  subjects.  For  they  go  on  to  resolve 
"that  it  is  inseparably  essential  to  the  freedom  of  a  people, 
and  the  undoubted  right  of  Englishmen,  that  no  taxes  be  im- 
posed on  them  but  with  their  own  consent,  given  personally, 
or  by  their  representatives ;" — ' '  that  trial  by  jury  is  the  inherent 


226  The  Administration  of  Dependencies 

and  invaluable  right  of  every  British  subject  in  these  Colonies; 
— also,  "that  it  is  the  right  of  the  British  subjects  in  these 
Colonies  to  petition  the  King  or  either  House  of  Parliament." 
This  is  all  very  true  and  very  sensible;  but  who  those  "  Eng- 
lishmen "  or  "  British  subjects  *'  in  the  Colonies  are,  to  whom, 
and  to  whom  only,  these  rights  belong,  cannot  easily  be  dis- 
covered. They  cannot  be  the  inhabitants  of  the  Colonies,  or 
those  who  have  been  born  there;  for  the  former  resolutions 
say  that  the  Colonies  are  "  not  within  the  British  Realm,"  and 
that  the  people  who  are  born  there  are  not  the  "  natural-born 
subjects  "  of  the  King,  "  born  within  the  Realm." 

Having  thus  seen  upon  what  sort  of  foundations  the  different 
Colony  Assemblies  build  their  several  titles  to  the  rights  and 
privileges  of  Englishmen,  and  that  each  superstructure,  at  the 
approach  of  reason,  vanishes  like  "the  baseless  fabric  of  a 
vision,"  I  will  not  fatigue  the  reader  with  a  discussion  of  the 
arguments  introduced  by  the  Colony  advocates  in  support  of 
the  Assemblies*  resolutions.  Whatever  they  can  urge  in  be- 
half of  the  Colonies'  claim  to  the  rights  and  privileges  of 
Englishmen,  whilst  they  deny  that  they  are  subjects  of  the 
Realm,  or  natural-born  British  subjects,  and  that  the  Colonies 
are  within  the  Realm,  must  be  obnoxious  to  the  same  charges 
of  inconsistency  and  absurdity  to  which  the  Assemblies'  reso- 
lutions are  so  palpably  liable;  and  the  simplest  of  my  country- 
men can  easily  detect  the  most  artful  American  sophister,  by 
insisting  upon  his  answering  this  plain  question — Are  the 
people  in  the  Colonies  British  subjects,  or  are  they  aliens  or 
foreigners  ? 

The  Assemblies  and  their  advocates,  aware  of  this  dangerous 
dilemma,  have  never  directly  and  explicitly  declared,  as  the 
reader  must  have  observed,  that  they  are,  or  that  they  are  not, 
British  subjects;  that  is,  subjects  of  the  British  State  or  com- 
munity. They  avoid  that  declaration  by  every  artifice  and 
subterfuge  that  words  can  supply  them  with, — they  are  at  one 
time  "Englishmen,"  at  another  "the  children,  and  not  the 
bastards  of  Britons,"  they  are  "free  Britons,"  "the  King  of 
Great  Britain's  liege  subjects,"  "they  owe  the  same  fealty  and 
allegiance  to  his  Majesty  that  is  due  to  him  from  his  subjects 


America's  Position  Criticised,  1769    227 

in  Great  Britain," — and  numberless  other  equivocal  profes- 
sions, which  serve  to  elude  the  main  question.  At  the  same 
time,  as  if  under  each  character  they  had  defined  their  condi- 
tion to  be  that  of  British  subjects,  they  boldly  draw  the  conse- 
quence, that  "  they  are  entitled  to  all  the  rights  and  privileges 
of  natural-born  subjects  in  common  with  the  people  of  Eng- 
land." That  they  cannot,  however,  maintain  their  title  to 
those  rights  upon  any  other  ground  than  that  of  their  being 
British  subjects,  born  and  inhabiting  within  the  Realm,  is,  I 
think,  sufficiently  evident;  and  therefore,  that  they  may  fail 
in  proving  that  they  are  not  British  subjects,  and  that  the 
Colonies  lie  without  the  Realm,  is  the  most  friendly  wish  I 
can  give  them. 

There  was  no  answer  to  this  criticism,  in  so  far  as  it 
charged  that  the  resolutions  were  inconsistent  with  each 
other.  The  rights,  privileges,  and  immunities  of  the 
Colonies  and  their  inhabitants  arose  out  of  the  character 
of  the  people  of  the  Colonies  and  the  geographical  rela- 
tionship of  the  Colonies  to  Great  Britain,  and  were  de- 
termined by  the  principles  of  the  general  public  law. 
Because  the  Imperial  State  happened  to  have  a  constitu- 
tion under  which  the  inhabitants  enjoyed  a  high  degree 
of  political  freedom,  it  did  not  necessarily  follow  that  the 
American  Colonies  were  entitled  to  the  same  freedom. 
The  British  Constitution  was,  of  course,  in  force  in  the 
Colonies  except  in  so  far  as  it  was  rendered  inapplicable 
by  their  local  conditions  and  circumstances,  but  the  in- 
habitants of  the  Colonies  were  entitled  to  the  same 
rights,  privileges,  and  immunities  as  the  inhabitants  of 
the  State  of  Great  Britain  only  in  case  their  conditions 
and  circumstances  were  the  same  as  those  of  the  people 
of  England.  The  fact  that  the  most  of  the  original 
American  colonists  were  English  did  not  necessarily  give 
them  the  rights,  privileges,  and  immunities  of  English- 
men. If  they  had  colonized  a  tropical  instead  of  a  tem- 
perate region,  these  very  colonists  might,  after  a  century 


228  The  Administration  of  Dependencies 

and  a  half,  by  reason  of  the  local  conditions  and  circum- 
stances, have  been  wholly  unfitted  to  exercise  the  same 
political  rights  as  Englishmen  at  home.  That  the  Ameri- 
cans were  entitled  to  the  same  rights  and  liberties  as  the 
inhabitants  of  Great  Britain  was  undoubtedly  true,  be- 
cause they  were,  as  matter  of  fact,  on  a  par  with  the  in- 
habitants of  Great  Britain  in  civilization.  That  they 
owed  "due  subordination"  to  Parliament  as  an  "August 
Body,"  and  not  "obedience  to  its  laws"  as  their  "Su- 
preme Legislature,"  was  undoubtedly  also  true,  but  this 
arose  from  their  geographical  situation  with  respect  to 
Great  Britain,  which  rendered  impossible  a  merger  of 
their  populations  with  that  of  Great  Britain  so  as  to  form 
a  Unitary  State. 

The  distinction  between  internal  and  external  taxes 
was  very  gingerly  touched  upon  by  the  authors  of  the 
pamphlet, — evidently  because  they  saw  that  there  was  a 
very  large  truth  underlying  this  distinction,  namely,  that 
the  principal  function  of  the  Central  Government  in  a 
Federal  State,  and  of  the  Imperial  State  in  a  Federal 
Empire,  is  to  attend  to  the  external  affairs  of  the  Mem- 
ber-States, since  it  is  with  regard  to  these  affairs  that 
there  is  principally  needed  a  guidance  and  direction  in 
the  common  interests.  They  passed  over  this  subject 
with  the  remark  that  the  distinction  had  been  abandoned 
by  the  Americans  themselves,  saying : 

However  cautious  the  Colonies  have  been  in  admitting  that 
they  are  British  subjects  in  any  sense  whatever,  they  do  not 
nevertheless,  as  yet,  reject  the  authority  of  Parliament  to 
bind  them  in  any  case,  save  in  the  article  of  taxation ;  and, 
against  even  this  right  in  Parliament,  they  do  not  urge  that 
they  are  not  British  subjects,  and  consequently  not  within  the 
jurisdiction  of  the  supreme  British  Legislature,  because  that 
plea  would  involve  every  other  right  of  jurisdiction  in  the  de- 
osion  of  that  question;  and  it  is  the  artifice  of  the  managers 


America's  Position  Criticised,  1769    229 

on  behalf  of  the  Colonies,  to  avoid  general  questions,  and  to 
keep  back  and  conceal  consequences,  lest  the  unsuspecting 
people  of  England  should  too  soon  catch  the  alarm,  and  re- 
solve to  withstand  their  first  attempts  at  independency. 

When  the  repeal  of  the  Stamp  Act  was  their  object,  a  dis- 
tinction was  set  up  between  internal  and  external  taxes;  they 
pretended  not  to  dispute  the  rights  of  Parliament  to  impose 
external  taxes,  or  port  duties,  upon  the  Colonies,  whatever 
were  the  purposes  of  Parliament  in  laying  them  on,  or  how- 
ever productive  of  revenue  they  might  be.  Nay,  Doctor 
Franklin  tells  the  House  of  Commons,  that  "  they  have  a 
natural  and  equitable  right  to  some  toll  or  duty  upon  mer- 
chandises carried  through  that  part  of  their  dominions,  viz. 
the  American  seas,  towards  defraying  the  expense  they  are  at 
in  ships  to  maintain  the  safety  of  that  carriage."  This,  how- 
ever, was  only  the  language  for  1765  and  1766;  but  when 
Parliament  seemed  to  adopt  the  distinction,  and  waiving  for 
the  present  the  exercise  of  its  right  to  impose  internal  taxes, 
imposed  certain  duties  on  merchandises  imported  into  the 
Colonies,  and  carried  through  those  seas  which  the  Parliament 
was  told  were  [its  dominions],  the  distinction  between  internal 
and  external  taxes  is  rejected  by  the  Colony  advocates,  and  a 
new  one  devised  between  taxes  for  the  regulation  of  trade, 
and  taxes  for  the  purpose  of  revenue. 

The  authors  of  the  pamphlet  next  proceeded  to  criti- 
cise the  distinction  which  they  claimed  that  Dickinson 
had  made  in  his  Farmer  s  Letters^  between  taxation  for  the 
regulation  of  trade  and  taxation  for  purposes  of  revenue, 
by  showing  that  the  admission  by  the  Colonies  of  an  un- 
conditioned and  unlimited  power  in  Parliament  to  regu- 
late the  trade  of  the  Colonies  was  a  far  more  serious 
matter  for  them  than  would  be  an  admission  that  Parlia- 
ment had  the  right  to  tax  them,  since  taxation  implied 
permission  to  exercise  all  activities  on  condition  of  pay- 
ing a  tax,  and  the  exercise  of  them  to  the  greatest  extent 
so  as  to  produce  the  greatest  revenue,  whereas  regulation 


230  The  Administration  of  Dependencies 

of  trade  might  extend  to  the  entire  prohibition  of  activi- 
ties.    They  said  on  this  subject: 

This  new  distinction,  however,  between  taxes  for  the  regu- 
lation of  trade,  and  taxes  for  the  purpose  of  revenue,  as  far 
as  it  respects  the  right  of  ParHament  to  impose  the  one,  but 
not  the  other,  is,  of  all  absurdities,  the  most  ridiculous  that 
ever  was  contended  for.  It  is  saying,  in  other  words,  that 
Parliament  has  a  right  to  impose  a  heavy  tax,  but  not  a  small 
one.  It  may  lay  one  so  grievous,  that  nobody  can  afford  to 
pay  it;  but  it  has  no  authority  to  impose  one  which  may  be 
easily  borne. 

I  believe  it  is  the  first  time  that  the  Colonies  of  any  State 
have  complained  of  the  injustice  of  the  Mother  Country  in 
laying  taxes  upon  them  which  were  not  sufficiently  heavy;  nor 
was  it  ever  before  discovered  that  the  proper  means  to  redress 
the  grievances  of  any  people,  were  to  increase  their  taxes. 
And  yet  this  is  certainly  the  case  in  the  present  instance  be- 
tween Great  Britain  and  her  Colonies;  for,  if  Parliament  had 
augmented  the  duties  upon  foreign  molasses,  instead  of  reduc- 
ing them,  or  had  it  laid  on  another  shilling  upon  black  teas 
exported  to  the  Colonies,  instead  of  taking  one  off,  the  right 
to  do  so  would  have  been  admitted.  But  (says  Mr.  Dickin- 
son) the  heavy  tax  would  have  operated  as  a  prohibition,  which 
is  a  regulation  of  trade;  the  light  tax  is  intended  to  be  paid, 
and  is  laid  for  the  purpose  of  revenue. 

It  is  the  purpose  of  Parliament  in  laying  the  tax,  which,  it 
seems,  gives  it  the  right  of  laying  it.  Curious  reasoning  this! 
Now,  should  it  happen  that  Parliament  was  at  any  time  mis- 
taken in  its  purpose,  and  that  a  tax  which  it  imposed  with  an 
intention  that  nobody  should  pay  it, — that  is,  that  it  should 
operate  as  a  prohibition, — should  really  turn  out  to  be  such  a 
tax  as  the  commodity  on  which  it  was  charged  could  bear,  and 
the  people  in  the  Colonies  were  willing  to  purchase  it  at  the 
price  the  tax  had  raised  it  to,  what  should  we  do  then  ?  If 
the  tax  be  paid,  it  then  becomes  a  revenue  tax,  and  no  longer 
a  prohibitory  one;  and  is  thenceforward  a  grievance,  and  an 


America's  Position  Criticised,  1769    231 

infringement  of  the  rights  of  the  Colonies.  On  the  other 
hand,  suppose  Parliament  should  be  mistaken  in  a  tax  it  laid 
for  the  purpose  of  revenue,  and  it  turned  out  a  prohibition, 
would  the  tax  then  become  a  constitutional  one  ? 

Nevertheless,  say  the  Colony  advocates,  the  essential  dis- 
tinction between  the  two  sorts  of  taxes  will  subsist  in  the  pur- 
pose for  which  the  tax  is  laid,  no  matter  how  it  may  operate; 
and  for  this  essential  distinction  we  are  referred  to  our  old 
statutes.  Let  the  reasoning  of  Parliament  in  the  preamble  to 
the  15th  of  Charles  the  Second,  chapter  the  eleventh,  be  the 
measure  of  this  distinction,  and  then  we  shall  see  where  the 
boundary  line  is  to  be  drawn. 

"In  regard,"  says  this  statute,  "that  his  Majesty's  Planta- 
tions, &c.  beyond  the  seas,  are  inhabited  and  peopled  by  his 
subjects  of  this  his  Kingdom  of  England,  for  the  maintaining 
a  greater  correspondence  and  kindness  between  them,  and 
keeping  them  in  a  firmer  dependence  upon  it,  and  rendering 
them  yet  more  beneficial  and  advantageous  to  it,  in  the  further 
employment  and  increase  of  English  shipping  and  seamen, 
vent  of  English  woolen,  and  other  manufactures  and  commod- 
ities, rendering  the  navigation  to  and  from  the  same  more 
safe  and  cheap,  and  making  this  Kingdom  a  staple,  not  only 
of  the  commodities  of  those  Plantations,  but  also  of  the  com- 
modities of  other  countries  and  places;  for  the  supplying  of 
them,  be  it  enacted,  &c."  These  several  purposes  are  there- 
fore to  be  deemed  regulations  of  trade;  and  to  whatever  tax 
or  duty  which  may  be  imposed  with  any  of  those  purposes, 
the  Colonies  ought  to  submit,  notwithstanding  a  revenue 
should  incidentally  arise  from  them.  Be  it  so.  One  purpose, 
then,  it  appears,  is,  the  making  the  Colonies  a  "vent"  for  Brit- 
ish "manufactures."  Now  if  the  British  manufacturers  are 
heavily  taxed,  and  the  American  manufacturer  pays  no  taxes, 
or  very  small  ones,  the  British  manufactures  must  come  much 
dearer  to  the  consumer  in  the  Colonies  than  American  manu- 
factures, and  consequently  the  British  manufactures  will  not 
sell  there,  and  the  Colonies  will  no  longer  be  a  vent  for  them. 
To  prevent  which,  there  can  be  no  means  so  evident  or 
effectual,  as  taking  off  taxes  from  the  British  manufacturers 


232  The  Administration  of  Dependencies 

and  laying  them  on  the  American  manufacturers.  With  this 
view,  and  with  this  purpose,  of  securing  a  "vent"  for  the 
British  "  manufactures,"  an  Act  of  Parliament,  laying  a  poll- 
tax  upon  all  manufacturers  of  linen  or  wool,  or  a  heavy  tax 
upon  all  kinds  of  manufactures  which  should  be  made,  in  the 
Colonies,  would  be  extremely  proper.  For  this  purpose  also, 
all  materials  for  manufactures  should  be  taxed,  unless  ex- 
ported to  Great  Britain ;  as  should  all  tools  and  instruments 
for  manufacturing.  The  encouragement  of  English  navigation 
likewise  opens  another  vein  for  drawing  off  the  life-blood  of 
the  Colonies,  as  they  call  their  money.  Tonnage  duties  upon 
all  ships  and  vessels  built  in  the  Colonies;  duties  upon  all 
materials  for  ship-building,  of  the  product  of  the  Colonies,  or 
imported  there;  and,  in  short,  there  is  scarcely  a  tax,  internal 
or  external,  which  the  people  of  England  are  liable  to,  that 
might  not  be  imposed  on  the  Colonies  for  some  of  these  pur- 
poses. Besides,  if  we  enter  thoroughly  into  the  matter,  we 
shall  find  that  it  is  always  an  argument  of  the  want  of  finance 
ability  in  the  Minister  who  proposes  any  tax  which  is  not  in- 
tended to  operate  beneficially  as  a  regulation,  as  well  as  to 
produce  revenue. 

A  land-tax  is  a  judicious  regulation,  inasmuch  as  it  excites 
the  land-owner  to  cultivate  and  improve  his  lands;  and  with 
this  very  view,  taxes  are  laid  upon  unimproved  lands  in  Amer- 
ica, by  the  Colony  Assemblies.  Thus  our  East  India  duties 
are  many  of  them  calculated  to  promote  our  own  manufac- 
tures, as  well  as  to  raise  a  revenue.  Thus  the  duties  upon 
French  goods  were  imposed  with  a  view  to  check  the  trade  of 
France,  to  encourage  our  own  manufactures,  and,  at  the  same 
time,  to  raise  a  fund  for  defraying  the  public  expenses.  So 
likewise  are  a  multitude  of  our  taxes  upon  articles  of  luxury 
and  of  extravagance  in  our  home  consumption;  so  likewise 
are  the  taxes  upon  many  of  our  exports,  to  prevent  the  manu- 
facture of  our  raw  material  abroad,  and  to  encourage  it  at 
home. 

The  double  tax  upon  the  Roman  Catholics  was  laid  with  a 
view  to  weaken  that  interest,  as  well  as  to  raise  a  revenue; 
and  it  was  considered  and  urged  as  the  strongest  motive  for 


America's  Position  Criticised,  1769    233 

laying  on  the  British  stamp  duties  upon  licenses  to  keep  ale- 
houses, to  sell  wine  and  spirituous  liquors,  and  even  those 
upon  all  law  proceedings,  and  upon  the  admission  of  attorneys, 
and  many  others,  that  those  duties  would  greatly  operate  to 
discourage  and  diminish  what  was  wished  to  be  checked,  as 
well  as  produce  a  public  revenue. 

Upon  this  principle,  even  the  Stamp  Act  in  America 
might  have  been  considered  as  a  regulation;  for  it  was  in- 
tended likewise  to  prevent  or  detect  the  forgery  of  deeds,  wills, 
or  other  instruments;  to  discourage,  by  a  high  duty,  the  grant 
of  large  quantities  of  land  to  one  person;  to  make  all  law 
proceedings  and  instruments  in  the  English  language,  and 
thence  incite  the  foreign  subjects  to  learn  it;  to  discourage  a 
spirit  of  unnecessary  litigation  in  the  Colonies;  to  prevent 
disorders  which  frequently  happen  from  tippling-houses  in 
remote  places,  and  from  selling  spirituous  liquors  to  the 
Indians  in  the  woods;  to  make  the  entries  and  clearances  of 
ships  more  regular;  and  to  prevent  false  cockets,  and  several 
things  of  the  like  nature. 

This  boasted  distinction  between  taxes  for  the  regulation  of 
trade,  and  taxes  for  the  purpose  of  revenue,  we  therefore  see 
is  without  a  difference,  and  will  in  no  sort  serve  to  protect  the 
Colonies  from  Parliamentary  internal  and  external  taxation, 
however  it  may  serve  for  a  pretence,  under  which  to  strip 
Parliament  of  all  jurisdiction  over  the  Colonies. 

Evidently  realizing  that  they  had  gone  farther  than 
they  ought  in  interpretating  the  Fanner  s  Letters  as  ad- 
vocating a  distinction  between  taxes  for  the  regulation  of 
trade  and  taxes  for  the  purposes  of  revenue,  the  authors 
next  attempted  to  show  that  what  Dickinson  had  un- 
questionably advocated,  namely,  that  the  sole  power  of 
Parliament  was  to  regulate  trade  otherwise  than  by  taxa- 
tion, made  no  difference  in  the  principle.  This  they  did 
by  arguing  that  there  were  practically  no  regulations  of 
trade  for  the  Colonies  conceivable  which  would  not  be 
subject  to  all  the  objections  of  a  tax.     They  claimed  that 


234  The  Administration  of  Dependencies 

Dickinson  had  in  effect  admitted  this  when  he  said,  in 
the  Farmer s  Letter s^  that  "an  Act  of  Parliament,  com- 
manding us  to  do  a  certain  thing,  if  it  has  any  validity, 
is  a  tax  upon  us  for  the  expense  that  accrues  in  comply- 
ing with  it."  After  quoting  this  passage  and  others  of 
like  purport  from  the  Farmer  s  Letters,  they  proceeded : 

If  we  take  the  sense  of  these  several  passages  together,  we 
shall  find  that  the  exercise  of  sovereign  authority  over  the 
Colonies  is  connected  so  intimately  with  the  right  of  taxation, 
that  the  one  cannot  subsist  without  the  other  in  any  case  what- 
soever. The  impressing  wagons  or  boats  for  the  transporta- 
tion of  troops  or  their  baggage;  the  quartering  them  even 
upon  public  houses;  their  trampling  down  a  man's  fences  in 
their  march,  or  encamping  upon  his  grounds;  their  passage 
over  ferries  or  toll-bridges  —  are  all  taxes,  it  seems;  for  in  all 
these  cases,  something  is  furnished  to  the  troops,  or  something 
is"  done  by  them,  or  something  is  commanded  to  be  done  for 
them,  from  whence  some  expense  will  accrue  to  the  people  in 
the  Colonies.  And  if  Parliament  has  no  right  to  require  any 
of  these  things  to  be  done,  without  the  consent  of  the  Colonies, 
it  can  have  no  right  to  keep  up  any  troops  in  the  Colonies,  or 
to  march  them  through  the  country  without  their  consent, 
which  is  repugnant  to  every  idea  of  sovereignty  on  the  one 
part,  and  of  dependence  on  the  other;  besides,  there  can  be 
neither  restraints  nor  regulations  of  trade  but  what  must  fall 
within  some  of  these  descriptions  of  taxes.  To  oblige  a  plan- 
ter to  carry  his  products  to  a  port  of  entry,  when  a  vessel  can 
take  them  in  at  his  own  landing-place,  nay,  to  oblige  a  mer- 
chant to  ship  his  goods  from  the  Custom  House  quay,  when 
another  wharf  is  more  convenient  to  him,  is  to  command  the 
planter  and  merchant  to  do  certain  things  from  whence  ex- 
pense will  accrue.  The  fees  paid  the  officers  of  the  customs 
for  entries  and  clearances,  are  also  expenses  charged  upon  the 
Colonies,  and  consequently  taxes.  Confining  the  Colonies  to 
purchase  commodities  or  manufactures  in  Great  Britain,  when 
they  could  purchase  them  at  a  cheaper  rate  elsewhere,  is  tax- 
ing them,  in  this  way  of  reasoning;  obliging  the  Colonies  to 


America's  Position  Criticised,  1769    235 

sell  their  products  in  Great  Britain,  or  to  land  them  there 
before  they  carry  them  to  another  market,  is  likewise  a  tax 
upon  them;  for  in  all  these  cases,  they  are  commanded  to  do 
something  from  whence  expense  accrues. 

All  the  taxes  which  are  paid  by  the  people  in  England,  in- 
asmuch as  they  serve  to  raise  the  price  of  labor  or  materials, 
and  thereby  raise  the  price  of  manufactures,  are  all  taxes 
upon  the  people  of  the  Colonies,  who  are  obliged  to  purchase 
those  manufactures  at  our  prices,  and  may  not  get  them  from 
other  countries. 

It  would  be  endless  to  trace  this  doctrine  of  taxes  through 
all  its  consequences.  I  have  already  gone  far  enough  to 
show  that,  upon  Mr.  Dickinson's  principles,  where  they  can- 
not be  imposed,  there  can  be  neither  restraints  upon  trade, 
nor  exercise  of  sovereign  authority;  and  that  if  Great  Britain 
does  not  possess  the  right  of  taxing  the  Colonies,  she  has  no 
right  to  exercise  any  jurisdiction  over  them;  but  that  the 
Colonies  are,  as  Mr.  Dickinson  says  they  are,  of  themselves, 
"a  distinct  community,  or  one  political  body  of  which  each 
Colony  is  a  member,  separated  from  the  rest  of  the  world," 
and  especially  from  Great  Britain.  Yet,  notwithstanding  these 
are  clearly  the  consequences  which  must  follow  from  his 
premise,  and  that  such  are  the  consequences  the  Colonies 
mean  should  follow  from  them,  Mr.  Dickinson,  not  caring  to 
discover  the  whole  of  their  purpose  so  fully  at  present,  in  the 
beginning  of  his  second  Letter,  thus  expresses  himself:  "  The 
Parliament  unquestionably  possess  a  legal  authority  to  regu- 
late the  trade  of  Great  Britain  and  all  her  Colonies;  such  an 
authority  is  essential  to  the  relation  between  a  Mother  Country 
and  her  Colonies,  and  necessary  for  the  common  good  of  all. 
He  who  considers  these  Provinces  as  States  distinct  from  the 
British  Empire,  has  very  slender  notions  of  justice,  or  of  their 
interests;  we  are  but  parts  of  a  whole,  and  therefore  there 
must  exist  a  power  somewhere  to  preside  and  preserve  the 
connection  in  due  order.  This  power  is  lodged  in  the  Parlia- 
ment." Again,  in  the  same  Letter,  he  says,  "  that  we  [the 
Colonies]  may  be  legally  bound,  by  Act  of  Parliament,  to  pay 
any  general  duties  on  these  commodities,  that  is,  paper  and 


236  The  Administration  of  Dependencies 

glass  &c.,  relative  to  the  regulation  of  trade,  is  granted." 
How  it  comes  to  pass  that  these  general  duties  do  not  occasion 
an  expense  to  the  people  who  pay  them,  Mr.  Dickinson  has 
not  told  us,  or  in  what  manner  the  Parliament  of  Great  Britain 
can  exercise  its  legal  authority  to  regulate  the  trade  of  the 
Colonies,  and  preside  over  the  whole,  and  preserve  the  con- 
nection in  due  order,  without  a  power  of  commanding  the 
Colonies  to  furnish  a  single  article  for  such  part  of  the  national 
forces,  as  it  may,  for  these  purposes,  be  thought  fit  to  station 
among  them;  or  what  sort  of  regulations  of  trade  Parliament 
can  devise,  from  the  observance  of  which  no  expense  will 
accrue  to  the  Colonies,  are  matters  which  he  has  not  thought 
proper  to  explain. 

The  authors  of  the  pamphlet  did  not  fail  to  point  out 
that  the  main  and  real  objection  to  Dickinson's  proposi- 
tion that  Parliament  had  power  to  regulate  the  trade  of 
the  Colonies  otherv^rise  than  by  taxation,  but  had  no 
other  power  over  the  Colonies,  was,  that  there  was  neces- 
sarily implied  in  this  that  the  powers  of  Parliament  in  the 
Colonies  and  in  Great  Britain  were  not  identical,  and 
that,  the  instant  that  was  admitted,  it  was  admitted  that 
the  Colonies  were  not  "of  the  same  community  with 
England," — that  is,  were  dependent  States,  and  no  one 
could  tell  what  the  power  of  Parliament  over  them  was, 
or  whether  it  had  any  power  over  them  at  all.  Their 
words  were : 

Whatever  impeaches  the  jurisdiction  of  Parliament  over  the 
Colonies,  however  insignificant  in  itself,  becomes  of  impor- 
tance from  its  consequences;  for  if  the  authority  of  the  Legis- 
lative be  not  in  one  instance  equally  supreme  over  the  Colonies 
as  it  is  over  the  people  of  England,  then  are  not  the  Colonies 
of  the  same  community  with  the  people  of  England.  All  dis- 
tinctions destroy  this  union;  and  if  it  can  be  shown  in  any 
particular  to  be  dissolved,  it  must  be  so  in  all  instances  what- 
ever. There  is  no  alternative:  either  the  Colonies  are  a  part 
of  the  community  of  Great  Britain,  or  they  are  in  a  state  of 


America's  Position  Criticised,  1769    237 

nature  with  respect  to  her,  and  in  no  case  can  be  subject  to 
the  jurisdiction  of  that  legislative  power  which  represents  her 
community,  which  is  the  British  Parliament. 

However  faint  any  line  of  partition  may  be  attempted  to  be 
drawn  between  the  people  in  England  and  the  people  in  the 
Colonies,  it  is  not  to  be  endured,  if  we  would  preserve  the  union 
between  them  as  one  community,  and  the  supremacy  of  Parlia- 
ment over  all  as  the  representative  of  that  community. 

This,  no  doubt,  was  also  intended  as  an  answ^er  to  the 
suggestion  which  the  Stamp  Act  Congress  itself  had 
made,  in  its  Address  to  the  House  of  Commons,  when 
it  submitted  to  that  House  "whether  there  be  not  a  ma- 
terial distinction,  in  reason  and  sound  policy  at  least,  be- 
tween the  necessary  exercise  of  Parliamentary  jurisdiction 
in  general  Acts,  and  the  common  law  and  the  regulations 
of  trade  and  commerce  through  the  whole  Empire,  and 
the  exercise  of  that  jurisdiction  by  imposing  taxes  in  the 
Colonies,"  which  was  a  definite  suggestion  that  the 
power  of  Parliament  in  the  Realm  was  different  in  char- 
acter and  extent  from  its  power  in  the  Empire — different 
in  character  because  to  be  exercised  only  according  to  the 
necessity  for  its  interference,  and  different  in  extent  be- 
cause in  the  matter  of  taxation  of  the  Colonies,  at  least, 
it  was  wholly  without  power. 

The  alternative  seemed  to  Knox  and  Grenville  to  be 
that  Great  Britain  and  the  Colonies  either  constituted  a 
Unitary  State  of  which  the  British  Parliament  was  the 
Legislature  and  the  British  King  the  Executive,  or  that 
Great  Britain  was  a  State  foreign  to  the  American  Col- 
onies, in  which  case  they  were  "  in  a  state  of  nature  " 
with  relation  to  it,  and  subject  to  its  will  as  much  as  if 
they  were  its  mere  conquests. 

Nor  was  this  position  wholly  unpraiseworthy.  It  was, 
in  one  sense,  a  manifestation  of  the  Imperial  spirit  with 
which  the  English  State  has  always  been  imbued — a  spirit 


238  The  Administration  of  Dependencies 

which  has  its  basis  in  the  sense  of  the  personality  of  the 
Engh'sh  State.  The  Engh'sh  idea  always  was  that  the  Eng- 
lish State  might  incorporate  other  States  or  communities 
into  itself,  but  that  it  could  never  confederate  with  other 
States  or  be  incorporated  by  another  State  into  itself — 
that  any  union  with  other  States  must  result  so  that  the 
English  State  was  the  Central  and  Governing  Power  of 
the  whole  organism.  All  communities  not  incorporated 
into  the  English  State  so  as  to  form  a  part  of  its  person- 
ality were  considered  to  be  **  in  a  state  of  nature  "  with 
respect  to  it — that  is,  subject  to  its  will,  which,  if  not 
yielded  to,  was  to  be  executed  by  force.  The  Union 
with  Scotland  in  1707  had  been  an  incorporating  merger 
of  the  Scotch  population  with  the  English  under  such 
terms  that  the  population  of  Scotland  was  in  fact 
segregated  and  made  dependent  on  the  population  of 
England  acting  through  the  majority  in  Parliament,  and 
hence,  practically,  dependent  on  the  State  of  England, 
except  that  trade  and  intercourse  between  them  was 
free  from  imposition  or  tax. 

It  was  only  natural,  therefore,  that  any  Englishman 
should  look  with  suspicion  upon  any  interpretation  of  the 
Constitution  of  the  British  Empire  according  to  which  it 
was  to  be  regarded  as  a  federal  organism,  in  which  Great 
Britain — that  is,  England — was  the  Central  Government, 
and  the  American  Colonies  the  Member-States.  Such 
an  arrangement,  no  doubt,  seemed  to  Englishmen  to 
place  England  in  an  equivocal  position  with  relation  to 
the  Colonies,  since  it  would  be  their  agent,  delegate, 
or  representative,  even  though  it  had  power  to  ad- 
judicate upon  the  limits  of  its  own  jurisdiction. 

Knox  and  Grenville  did  the  Colonies  a  service  in  de- 
molishing the  position  that  the  rights  of  their  inhabitants 
were  the  rights  of  Englishmen,  and  compelling  them  to 
base  their  rights  on  general  principles;  and  also  in  point- 
ing out  that  the  moment  they  claimed  that  the  power  of 


America's  Position  Criticised,  1769    239 

Parliament  was  different  in  the  Colonies  from  what  it  was 
in  Great  Britain,  they  declared  themselves  to  be  States 
distinct  from  the  State  of  Great  Britain,  and  compelling 
them  to  base  their  rights  upon  an  interpretation  of  the 
existing  relationship  between  themselves  as  States,  and 
Great  Britain. 

The  criticism  contained  in  this  pamphlet  changed  the 
whole  course  of  political  thought  in  America.  It  had 
been  shown  that  the  rights  of  the  Colonies  did  not  arise 
from  their  ancestors  having  been  Englishmen  and  were 
not  derived  through  any  rights  pertaining  to  individuals, 
but  arose  out  of  the  nature  of  things,  which  made  it  just 
and  necessary  that  political  communities  external  to  a 
State  and  so  far  distant  or  distinct  from  it  that  a  merger 
of  their  populations  with  that  of  the  State  was  impos- 
sible, should  be  regarded  and  should  regard  themselves  as 
States,  in  a  constitutional  relationship  of  subordination 
to  the  Imperial  State,  and  as  constituting,  with  it,  a 
Federal  Empire.  It  forced  the  Colonies  to  base  their 
claims  upon  their  rights  as  States,  and  to  found  their 
claim  of  right  to  statehood  to  the  extent  of  exclusive 
self-taxation,  upon  their  capacity  for  governing  them- 
selves as  States  and  upon  the  existence  of  a  moral  sense 
which  would  have  made  it  repugnant  to  the  popu- 
lations of  the  Colonies  to  refuse  to  abide  by  the  solemn 
and  impartial  adjudications  of  Great  Britain  concerning 
the  limits  of  its  jurisdiction,  or  to  make  use  of  the  ser- 
vices of  Great  Britain  as  the  Central  Government,  having 
the  function  of  protection  and  co-ordination  of  all  the 
parts  of  the  whole  organism,  without  paying  for  these 
services.  In  other  words,  in  so  far  as  the  Colonies  had 
attempted  to  work  out  their  rights  from  the  rights  of 
their  inhabitants,  as  individuals,  the  American  position 
(involving  as  it  did  the  proposition  that  the  British 
Empire  was  a  Unitary  State)  was  demolished;  but  in  so 
far  as  it  was  attempted  to  work  out  the  rights  of  the 


240  The  Administration  of  Dependencies 

inhabitants  of  the  Colonies  from  the  rights  of  the  Colo- 
nies, as  Member-States  of  the  British  Empire,  it  was 
uninjured,  because  impregnable, — the  British  Empire 
being,  in  fact,  a  federal  organism. 

Had  the  resolutions  of  the  Stamp  Act  Congress  been 
remodelled  so  as  to  meet  this  criticism,  they  would  have 
read,  it  would  seem,  somewhat  as  follows : 

Resolved:  That  the  American  Colonies,  as  dependencies  of 
Great  Britain,  are  Member-States  and  component  parts  of  the 
British  Empire  as  a  Federal  Empire,  of  which  Great  Britain 
is  the  Imperial  State  and  Central  Government,  with  power  to 
determine  expertly  and  on  just  principles  the  limits  of  its  own 
jurisdiction.  To  such  adjudications,  whether  made  through 
the  King  in  Council  or  through  the  King,  Lords,  and  Com- 
mons in  Parliament  assembled,  the  Colonies  owe  the  respect 
and  reverence  which  is  properly  and  rightly  due  to  tribunals 
of  so  august  a  character. 

That  all  the  dependencies  of  Great  Britain  are  justly  en- 
titled to  the  highest  degree  of  member-statehood  consistent 
with  their  highest  development  and  the  highest  development 
of  the  whole  Empire. 

That  it  is  inconsistent  with  the  degree  of  member-statehood 
to  which  the  American  Colonies  are  justly  entitled  and  to 
which  they  have  been  heretofore  recognized  as  being  entitled, 
that  they  should  not  have  exclusive  control  of  their  internal 
and  external  taxation. 

That  the  British  Constitution  is  in  force  in  the  Colonies 
except  in  so  far  as  it  is  rendered  inapplicable  by  local  conditions 
and  circumstances,  and  that  the  local  circumstances  and  con- 
ditions in  the  Colonies  are  not  such  as  to  require  the  abolition, 
to  any  extent,  of  the  right  of  trial  by  jury. 

No  opportunity  occurred  for  reviewing  the  resolutions 
of  the  Stamp  Act  Congress  until  the  Continental  Congress 
met  in  1774.  When  that  Congress  met,  it  was  evident 
that  the  criticism  of  Knox  and  Grenville  had  had  its 
effect,  and  that  the  Colonies  had  profited  by  it. 


CHAPTER   XIV 

REALM,— NOT   EMPIRE,   1769-1774 

THE  work  done  by  Knox  and  Grenville,  in  the 
pamphlet.  The  Controversy  between  Great  Britain 
and  the  Colonies  Reviewed,  was  not  wholly  negative 
and  critical  of  the  American  propositions.  A  large  part 
of  it  was  devoted  to  an  attempt  to  prove  afifirmatively 
that  Great  Britain  and  the  Colonies  constituted  a  single 
Unitary  State — that  there  was  no  British  Empire,  but 
only  a  British  Realm,  of  which  the  Colonies  were  inte- 
gral parts. 

Their  first  point  was  that  the  Parliament  of  Great 
Britain  was  the  Supreme  Legislature  of  every  person  sub- 
ject to  the  power  of  the  State  of  Great  Britain,  on  the 
theory  that  every  individual  within  that  State,  by  be- 
coming and  remaining  subject  to  its  power,  had  tacitly 
assented  that  Parliament  should  be  the  Supreme  Legis- 
lature.    They  said  on  this  subject : 

The  subjects  of  Great  Britain  [in  the  Colonies]  are  not 
without  their  representatives,  though  the  members  who  com- 
pose the  House  of  Commons  cannot  be  said  to  be  distinctly 
so.  Neither  are  they  bound  by  laws,  nor  is  their  money 
taken  from  them  without  their  own  consent  given  by  their 
representatives.  The  King,  Lords,  and  Commons  are  their 
representatives;  for  to  them  it  is  that  they  have  delegated 
their  individual  rights  over  their  lives,  liberties,  and  property; 
and  so  long  as  they  approve  of  that  form  of  government,  and 
continue  under  it,  so  long  do  they  consent  to  whatever  is  done 

by  those  they  have  intrusted  with  their  rights. 
16 

241 


242  The  Administration  of  Dependencies 

"  Laws  they  are  not  (says  Hooker)  which  public  approba- 
tion hath  not  made  so.  But  approbation  not  only  they  give, 
who  personally  declare  their  assent  by  voice,  sign,  or  act,  but 
also  when  others  do  it  in  their  names,  by  right  originally  at 
the  least  derived  from  them.  And  to  be  commanded  we  do 
consent,  when  that  society  whereof  we  are  part  hath  at 
any  time  before  consented,  without  revoking  the  same  after 
by  the  like  universal  agreement."  And  Mr.  Locke,  who  fol- 
lowed this  learned  investigator  of  the  rights  of  mankind,  in 
his. answer  to  Sir  Robert  Filmer,  after  having  shown  that  the 
origin  of  all  power  is  from  the  people  only;  that  every  form 
of  government,  whether  a  democracy,  an  oligarchy,  an  elec- 
tive or  hereditary  monarchy,  is  nothing  more  than  a  trust 
delegated  by  the  society  to  the  person  or  persons  so  appointed, 
lays  it  down  as  a  fundamental  maxim  in  all  Governments: 
"  That  the  Legislative  is  the  joint  power  of  every  member  of 
the  society,  given  up  to  that  person  or  assembly  which  is  legis- 
lator; and  that  even  the  Executive,  when  vested  in  a  single 
person,  is  to  be  considered  as  the  representative  of  the  Com- 
monwealth." And  he  then  adds:  "  Nobody  doubts  but  an 
express  consent  of  any  man  entering  into  society  makes  him  a 
perfect  member  of  that  society,  a  subject  of  that  Government. 
The  difficulty  is  Avhat  ought  to  be  looked  upon  as  a  tacit  con- 
sent; and  to  this  I  say,  that  every  man  that  hath  any  posses- 
sions or  enjoyment  of  any  part  of  the  dominions  of  any 
Government,  doth  thereby  give  his  tacit  consent,  and  is  as  far 
forth  obliged  to  obedience  to  the  laws  of  that  Government 
during  such  enjoyment,  as  any  one  under  it." 

Upon  this  principle,  the  King  and  the  two  Houses  of  Parlia- 
ment, are  by  our  Constitution  representatives  of  the  Legisla- 
tive, as  the  King  alone  is  of  the  Executive  power  of  the 
Commonwealth;  and  upon  this  principle,  every  subject  of 
Great  Britain,  when  he  is  taxed  by  Parliament,  is  taxed  by 
his  own  consent,  for  he  is  then  taxed  by  consent  of  those 
whom  the  society  has  impowered  to  act  for  the  whole;  and 
every  member  of  that  community  must  therefore  subscribe  his 
tacit  consent  to  all  such  taxes  as  may  be  imposed,  or  other 
legislative  acts  that  may  be  done  by  those  whom  the  society 


Realm,-not  Empire,  1 769-1 774       243 

has  appointed,  as  long  as  the  form  of  government  subsists. 
This  is  the  British  Constitution;  and  if  the  British  subjects 
in  America  still  continue  to  be  part  of  our  community,  it  fol- 
lows that  they  also  are  represented  by  the  British  Legislative, 
and  equally  bound  by  its  laws. 

The  answer  to  this  argument,  so  far  as  it  is  founded  on 
the  theories  of  Hooker  and  Locke,  is  now  easy,  but  it 
was  not  in  1769,  because  political  thought  had  not  then 
evolved  to  the  point  where  the  State  as  organized  for  the 
purposes  of  war,  was  distinguished  from  the  State  as  or- 
ganized for  the  purposes  of  peace.  In  the  State  as  or- 
ganized for  the  purposes  of  war,  only  one  Legislature  and 
Executive  was  possible,  and,  for  the  most  effective  ex- 
ercise of  the  power  of  the  State,  it  was  necessary  that  all 
power  should  be  in  the  hands  of  one  individual.  For  a 
long  time  after  the  condition  of  peace  came  to  be  the 
normal  condition  of  the  State,  and  the  Sovereign  became 
a  body  of  persons  instead  of  a  single  individual,  the 
theory  that  the  power  of  the  supreme  governing  person 
or  body  was  indivisible,  remained  undisputed.  It  was 
not  until  the  American  Revolution  that  it  was  perceived 
that  the  will  of  the  people  was  the  supreme  power,  and 
that  all  governmental  power  was  an  agency  for  them, 
which  they  might  divide  in  time  of  peace  between  twO' 
or  more  governmental  agents,  so  that  each  should  ex- 
ercise a  supreme  governmental  agency  within  its  sphere. 
When  Hooker  and  Locke  wrote,  the  conception  of  di- 
vided supreme  governmental  agency,  on  which  was  based 
the  claim  of  the  Colonies  to  be  Member-States  of  the 
British  Federal  Empire,  was  unknown. 

The  next  argument  was  that,  because  the  rights  of  the 
Colonies  were  originally  derived  from  the  Crown  through 
charters  or  commissions  granted  by  it,  which  necessarily 
implied  an  original  submission  to  Parliament  as  the  Su- 
preme Legislature,  the  Colonies  could  not  claim  to  be 


244  The  Administration  of  Dependencies 

Member-States  of  a  Federal  Empire,  because  this  would 
imply  a  subsequent  dispensation  by  the  Crown,  by  which 
the  Colonies  were  in  whole  or  in  part  released  from  the 
supreme  legislative  authority  of  Parliament,  which  the 
Crown  had  never  purported  to  give  and  which  it  could 
not  have  given,  especially  since  the  Act  of  Settlement  of 
1689,  by  which  the  King  recognized  that  he  had  no  power 
to  dispense  with  statutes.     They  said : 

That  the  first  inhabitants  of  the  Colonies  were  part  of  the 
British  community,  and  bound  to  obey  its  legislative  power  in 
all  respects,  as  any  other  subjects  at  the  time  of  the  establish- 
ment of  those  Colonies,  will  not  be  denied.  How  then  has 
that  obedience  been  altered  or  released  ?  Those  Colonies 
were  all  created  by  charters  or  temporary  authorities,  from  the 
Executive  Power  of  this  community,  except  in  the  cases  of 
Jamaica,  New  York,  and  the  late  acquisition  of  Quebec,  the 
Ceded  Islands,  and  the  two  Floridas,  which  were  conquests 
made  by  this  community  upon  foreign  powers,  and  such  of 
their  subjects  as  remained  were  incorporated  with  us  under 
our  laws  and  obedience.  And  it  cannot,  we  have  seen,  be 
pretended,  that  this  obedience  has  been  altered  or  released  by 
charters  or  authorities  from  the  Executive  Power ;  for,  on  the 
contrary,  the  obedience  to  the  laws  of  Great  Britain,  without 
any  restriction,  is  expressly  reserved  in  every  one  of  them, 
and  particularly  the  right  of  taxation  is  mentioned  and  reserved 
to  the  Parliament  of  Great  Britain  by  the  Charter  of  Pennsyl- 
vania, in  which  Colony  Mr.  Dickinson  wrote  his  Farmer  s 
Letters. 

This  argument  was  difficult  to  answer  in  1769.  The 
character  of  the  Colonies  as  Member-States  of  the  Fed- 
eral Empire  arose  neither  from  the  act  of  King  or  Parlia- 
ment, but  in  part  from  their  being  under  the  power  of 
the  State  of  Great  Britain,  and  in  part  from  the  nature 
of  things.  The  acts  of  the  Crown  derived  their  force  not 
merely  from  the  fact  that  they  were  expressions  of  the 


Realm,-not  Empire,  1 769-1 774       245 

will  of  the  King  or  of  the  State  of  Great  Britain,  but  also 
and  principally  because  they  were  adjudications  made  by 
the  King  under  expert  advice,  concerning  the  character 
and  extent  of  the  rights  of  member-statehood  which  the 
Colonies  ought,  on  just  principles,  to  have  in  the  Federal 
Empire.  The  question,  therefore,  was  not  of  the  right 
of  the  Crown  to  release  or  discharge  the  Colonies,  in 
whole  or  in  part,  from  the  power  of  Parliament,  but  of 
the  right  of  the  Crown  to  adjudicate  in  what  manner, 
and  to  what  extent,  the  Colonies  were,  in  the  nature  of 
things,  released  and  discharged,  in  time  of  peace,  from 
the  power  of  the  State  of  Great  Britain. 

The  authors  also  claimed  that,  in  the  case  of  the  in- 
habitants of  the  Colonies,  there  was  a  special  reason  why 
they  should  be  considered  as  an  integral  part  of  the  popu- 
lation of  the  British  State,  namely,  that  the  proprietary 
title  to  the  soil  itself,  as  well  as  the  governmental  au- 
thority over  the  soil,  had  been  originally  vested  in  the 
State  of  Great  Britain  by  discovery,  and  that  the  inhabi- 
tants had  recognized  this  original  and  paramount  title  in 
many  ways,  and  particularly  by  paying  to  the  Crown,  i.e., 
to  the  State  of  Great  Britain,  rents,  called  quit-rents,  re- 
served by  it,  in  lieu  of  the  military  or  other  service  which 
the  occupant  of  the  land  would  otherwise  owe.  The 
argument  on  this  point  was  as  follows : 

It  is  however  pretended,  that  the  lands  in  America  lying 
without  the  Realm,  and  appertaining  to  the  King  only,  their 
possessors  cannot,  from  those  circumstances,  be  subject  to  the 
jurisdiction  of  Parliament,  whose  authority  is  necessarily  con- 
fined within  the  limits  of  the  Realm,  This  plea,  it  is  pre- 
sumed, cannot  be  made  by  the  inhabitants  of  such  lands  as 
were  conquered  by  the  forces  of  the  British  State  from  foreign 
powers,  or  ceded  to  Great  Britain  by  treaty.  Those  conquests 
or  cessions  are  surely  the  dominions  of  the  Crown  of  Great 
Britain,  not  the  private  property   of   the  King,   which  have 


246  The  Administration  of  Dependencies 

thus  been  acquired  by  the  efforts,  the  blood,  and  treasure  of 
the  community;  and  indeed  Mr.  Dickinson  puts  these  out  of 
the  question  in  all  that  he  says  of  the  rights  of  the  Colonies. 

But  does  the  discovery  of  countries  by  the  subjects  of  the 
British  State,  or  the  cession  of  them  by  the  natives,  make 
those  countries  more  particularly  the  private  property  of  the 
King,  than  would  the  conquest  of  them  by  force  of  arms  from 
a  foreign  Prince,  or  the  acquisition  of  them  by  treaty  ?  The 
difference  only  lies  in  the  change  of  the  term,  the  Crown  for 
that  of  the  King;  but  that  change  has  been  made  without 
authority,  either  of  reason  or  fact.  The  Kings  of  England 
never  had  personally,  nor  ever  claimed  to  have  any  property 
in  the  lands  in  the  Colonies.  Those  of  them  who  carried 
their  claims  of  prerogative  the  highest,  never  pretended  to 
have  any  other  title  to  those  lands  than  what  they  derived 
from  their  possession  of  the  Crown  of  England,  and  they 
granted  them  under  that  title  to  their  present  possessors,  or 
their  ancestors ;  for  all  grants  of  lands  in  the  Colonies  have 
been  made  under  the  Great  Seal  of  England,  or  by  authority 
derived  under  the  Great  Seal  of  England,  which  is  the  same 
thing,  from  the  first  discovery  of  America  to  this  day. 

No  man,  at  least  no  lawyer,  will  pretend,  that  the  Great 
Seal  of  England  is  the  Private  Seal  of  the  King.  It  is  the 
Seal  of  the  State,  and  distinguishes  the  acts  of  the  State  from 
the  private  acts  of  the  King;  now,  had  the  Kings  of  England 
claimed  to  hold  the  lands  in  the  Colonies  as  their  own  private 
estate,  they  would  have  granted  them  of  their  own  private 
authority,  and  passed  them  under  their  own  Private  Seal,  and 
not  under  the  Great  Seal  of  England.  The  very  nature  of  the 
grant  or  charter  is  therefore  an  undeniable  proof  that  the  lands 
in  the  Colonies  are,  and  always  have  been,  the  possessions  or 
dominions  of  the  Crown  of  England,  and  not  the  private  per- 
sonal property  of  the  Kings  of  England.  And  it  is  an  equally 
undeniable  consequence,  that  those  who  hold  those  lands 
under  such  grants  or  charters,  or  by  whatever  title  which 
derives  its  authority  originally  or  immediately  under  the  Great 
Seal  of  England,  hold  them  of  the  Crown  of  England,  and  as 
a  part  and  parcel  of  the  Realm;  for  the  Crown's  estate  must 


Realm,-not  Empire,  1 769-1 774       247 

necessarily  be  within  the  Realm,  since  it  is  the  estate  or 
dominions  of  the  Crown  (though  not  of  the  King)  which  make 
the  Realm. 

In  so  far  as  this  argument  showed  that  the  soil  of  the 
Colonies  belonged  to  the  State  of  Great  Britain  as  its 
"property,"  it  was  unanswerable,  but  the  conclusion 
drawn  from  this  premise  was  wholly  wrong,  as  it  is  now 
possible  to  see.  To  conclude  from  the  premise  that  the 
soil  of  the  Colonies  was  the  property  of  the  State  of  Great 
Britain,  and,  as  such,  subject  to  the  unconditioned  and 
unlimited  power  of  that  State,  that  the  people  of  the 
Colonies  were  subject  to  the  unconditioned  and  unlimited 
power  of  that  State,  necessitated  a  minor  premise  to  the 
effect  that  the  people  on  the  soil  of  the  Colonies  were  a 
part  of  the  soil. 

The  argument,  put  in  the  form  of  a  syllogism,  would 
be: 

The  soil  of  the  Colonies  is  the  property  of  the  State  of  Great 
Britain,  and,  as  such,  subject  to  its  unconditioned  and  un- 
limited power. 

The  people  on  the  soil  of  the  Colonies  are  a  part  of  the  soil 
of  the  Colonies. 

Therefore  the  people  of  the  Colonies  are  the  property  of  the 
State  of  Great  Britain,  and,  as  such,  subject  to  its  uncondi- 
tioned and  unlimited  power. 

The  truth  of  this  minor  premise,  under  any  circum- 
stances, would  now  be  denied,  according  to  the  practi- 
cally unanimous  sentiment  of  the  civilized  world,  though' 
the  principle  contained  in  it  is  still,  unfortunately,  the 
underlying  basis  of  much  political  action.  The  difficulty 
with  the  syllogism,  however,  reaches  back  to  the  major 
premise,  which  is  itself  too  broad,  because  not  making  a 
difference  in  the  kind  and  degree  of  property  which  a 
State  has  in  the  soil  of  countries  external  to  itself,  accord- 
ing as  they  are  occupied  by  human  beings  or  not.     If  the 


248  The  Administration  of  Dependencies 

soil  of  a  country  external  and  belonging  to  a  State  is  oc- 
cupied by  human  beings,  the  region  is  its  "property," 
but  it  is  its  qualified  property — that  is,  its  property  sub- 
ject to  a  lien,  incumbrance,  or  diminution  of  power,  in 
favor  of  the  human  beings  occupying  the  soil,  to  the  ex- 
tent necessary  for  their  highest  development. 

The  modern  view,  stated  in  the  form  of  a  syllogism, 
would  be: 

The  soil  of  the  Colonies  is  the  property  of  Great  Britain, 
subject  to  its  unconditioned  and  unlimited  power  when  unoc- 
cupied by  human  beings,  but  subject,  when  occupied  by  human 
beings,  to  disposition  according  to  the  rules  of  the  general 
public  law  founded  on  reason  and  the  nature  of  things,  so  as 
to  effect  the  highest  development  of  the  inhabitants  both  of 
Great  Britain  and  the  Colonies.  As  an  incident  of  this  right 
of  disposition  and  to  the  extent  necessary  to  effectuate  this 
purpose,  Great  Britain  has  the  right  to  regulate  the  actions 
of  the  inhabitants  of  the  soil. 

The  soil  of  the  Colonies  is  occupied  by  human  beings. 

Therefore  the  soil  of  the  Colonies  is  subject  to  disposition 
according  to  the  rules  of  the  general  public  law,  founded  on 
reason  and  the  nature  of  things,  so  as  to  effect  the  highest  de- 
velopment of  the  inhabitants  both  of  Great  Britain  and  the 
Colonies;  and,  as  incidental  to  this  right  of  disposition,  and 
to  the  extent  necessary  to  effectuate  this  purpose.  Great 
Britain  has  the  right  to  regulate  the  actions  of  the  inhabitants 
of  the  soil. 

The  proposition  that  all  the  lands  subject  to  the  power 
of  a  State  were  integral  parts  of  the  State  in  spite  of  its 
wish  or  the  wish  of  the  inhabitants  of  the  lands  to  the 
contrary,  and  in  spite  of  the  separation  of  the  lands  from 
the  lands  occupied  by  the  State,  was  simply  a  conclusion 
based  on  the  proposition  that  a  State  is  an  aggregation 
of  lands  and  not  a  person  occupying  a  certain  amount  of 
space  on  the  earth's  surface.  The  whole  syllogism  would 
be: 


Realm,-not  Empire,  1 769-1 774       249 

Great  Britain  is  an  aggregation  of  lands  subject  to  a  Central 
Power. 

The  Colonies  are  lands  subject  to  this  Central  Power. 

Therefore  the  Colonies  constitute  an  integral  part  of  the 
State  of  Great  Britain. 

In  the  light  of  modern  knowledge  the  syllogism  would 
be  framed  thus : 

Great  Britain  is  a  legal  and  political  person, — that  is,  a  cor- 
poration and  a  state, — composed  of  all  the  individuals  inhab- 
iting certain  lands,  which  may  unite  to  itself  or  merge  in  itself 
the  individuals  inhabiting  other  lands,  provided  such  union  or 
merger  is  not  impossible  in  the  nature  of  things  on  account  of 
the  separation  of  the  lands  by  great  distance,  or  on  account 
of  the  individuals  inhabiting  the  lands  being  incapable  of 
fusion  with  the  individuals  composing  the  Corporation  and 
State  of  Great  Britain. 

The  lands  inhabited  by  the  individuals  composing  the 
Colonies  are  separated  by  a  great  distance  from  the  lands  in- 
habited by  the  individuals  composing  the  Corporation  and 
State  of  Great  Britain. 

Therefore  the  Colonies  are  not,  and  can  never  be,  integral 
parts  of  the  Corporation  and  State  of  Great  Britain. 

The  arguments  of  Knox  and  Grenville  were  of  a  kind 
which  could  not  be  answered  by  reference  to  English  pre- 
cedents, because  English  history  furnished  no  precedents. 
In  order  to  answer  them,  it  was  necessary  to  appeal  to 
what  was  then  called  "the  law  of  nature  and  of  nations," 
to  use  the  title  adopted  by  Pufendorf  in  1672,  or  to  "the 
general  public  law,"  to  use  the  title  adopted  by  Blunt- 
schli  in  1880,  which  concerns  itself  with  the  rights  and  du- 
ties of  the  State  towards  its  inhabitants  and  towards  its 
dependent,  associated,  and  federated  States  and  their  in- 
habitants. In  1769,  however,  the  thought  on  the  subject 
had  not  reached  the  point  where  this  necessity  was 
evident.      Lord   Chatham   and    Dickinson    were   silent. 


250  The  Administration  of  Dependencies 

Bernard's  scheme  for  a  Constitutional  Convention  of  the 
Empire  was  unpopular  on  both  sides  of  the  water,  each 
party  fearing  that  the  other  would  get  the  better  of  it  in 
a  constitutional  settlement.  Pownall's  scheme  for  Im- 
perial Unity  was  equally  unpopular,  the  British  being  un- 
willing to  convert  the  British  Parliament  into  an  Imperial 
Parliament,  and  the  Americans  being  unwilling  to  send 
representatives  to  an  Imperial  Parliament  because  they 
realized  that  the  British  Parliament  would  in  fact  control 
it,  and  that  they  would  thus  have  forever  committed 
themselves  to  the  non-expert  government  of  the  British 
House  of  Commons,  which  was  the  supreme  govern- 
mental agent  within  the  British  State. 

From  March  12,  1770,  when  the  British  troops  were  re- 
moved from  Boston,  until  the  destruction  of  the  tea  in 
Boston  Harbor,  on  December  18,  1773,  the  situation  be- 
tween Great  Britain  and  the  Colonies  remained  un- 
changed. The  advantage  in  the  debate  was  on  the  side 
of  Great  Britain,  since  the  burden  was  plainly  upon  the 
Colonies  to  show  that  the  power  of  Parliament  in  the 
Colonies  was  different  from  its  power  in  the  Realm,  and 
the  points  of  difference  which  they  had  suggested  had 
been  pretty  well  demolished  by  the  argument  of  Knox 
and  Grenville. 

This  condition  of  quiescence  was  largely  due  to  the 
conciliatory  resolution  adopted  by  the  Ministry  on  May 
I,  1769,  which  was  given  out  by  Lord  Hillsborough,  as 
Secretary  of  State  for  the  Colonies,  in  a  circular  letter  to 
the  Colonial  Governors,  in  which  it  was  declared : 

It  is  the  unanimous  opinion  of  the  Lords  present  .  .  . 
that  no  measures  should  be  taken  which  can  in  any  way 
derogate  from  the  legislative  authority  of  Great  Britain  over 
the  Colonies,  but  that  the  Secretary  of  State,  in  his  corre- 
spondence and  conversation,  be  permitted  to  state  .  . 
that  it  is  by  no  means  the  intention  of  Administration,  nor  do 
they  think  it  expedient,  or  for  the  interest  of  Great  Britain 


Realm,-not  Empire,  1 769-1 774       251 

or  of  America,  to  propose  or  consent  to  the  laying  of  any 
further  taxes  upon  America,  for  the  purpose  of  raising  a 
revenue,  and  that  it  is  at  present  their  intention  to  propose, 
in  the  next  Session  of  Parliament,  to  take  off  the  duties  upon 
paper,  glass  and  colors  imported  into  America,  upon  con- 
sideration of  such  duties  having  been  laid  contrary  to  the  true 
principles  of  commerce. 

This  quiescence  in  the  Colonies  was,  however,  wholly 
external.  None  of  the  causes  of  the  original  irritation 
were  removed  except  the  most  burdensome  of  the  taxes. 
There  never  was  an  instant  when  Great  Britain  did  not 
impose  some  taxes  on  the  Colonies  and  when  it  did  not 
keep  in  existence  in  the  Colonies  a  complete  set  of  officials 
and  machinery  for  the  collection  of  taxes.  The  taxation 
was  so  light,  however,  that  the  organized  resistance  by 
non-importation  agreements  came  to  an  end  in  the  fall  of 
1770,  it  having  been  found,  as  time  passed,  that  they 
were  being  violated  by  so  many  individuals  and  commu- 
nities that  the  rest  were  obliged  to  yield. 

Neither  the  Tariff  Act  of  1764  nor  that  of  1767  was 
repealed,  all  that  was  done  being  to  change  the  duties 
levied  under  them,  leaving  in  existence  all  the  objection- 
able provisions  of  those  Acts,  which  appropriated  the 
proceeds  of  the  taxes  to  defraying  the  charge  of  the 
administration  of  justice  and  the  support  of  civil  govern- 
ment in  the  Colonies,  and  which  legalized  writs  of  assist- 
ance and  permitted  taxes  to  be  recovered  by  actions  in 
Courts  of  Admiralty  or  in  a  general  Court  of  Vice-Ad- 
miralty for  all  America,  in  actions  triable  without  a 
jury. 

As  showing  that  the  British  Government  was  in  ear- 
nest about  the  establishment  of  a  general  Court  of  Vice- 
Admiralty  for  all  America,  the  action  of  the  King  in 
commissioning  the  Governors  of  several  of  the  Colonies 
by  the  title  of    "Governor  and  Vice- Admiral"  is  signifi- 


252  The  Administration  of  Dependencies 

cant.  This  made  it  possible  for  the  Governors  to  sit  as 
Courts  of  Vice-Admiralty  and  to  adjudicate  upon  cases 
arising  from  alleged  breaches  of  the  customs  laws  with- 
out a  jury.  The  Act  of  1767,  providing  for  the  establish- 
ment of  Commissioners  of  Customs  in  America,  appointed 
by  the  King  also,  continued  in  force  during  all  this  period. 
These  Commissioners,  like  the  Commissioners  of  Customs 
in  Great  Britain,  were  both  inquisitors  to  ascertain 
breaches  of  the  customs  laws,  and  prosecutors  in  customs 
cases.  By  the  establishment  of  this  Board  and  the  Court 
of  the  Governor  sitting  as  Vice- Admiral,  there  were  pro- 
vided instrumentalities  of  the  most  searching  and  rigorous 
kind  for  the  collection  of  taxes. 

During  the  period  from  1770  until  the  outbreak  of  the 
Revolution,  taxes  were  imposed  and  collected,  under  the 
Act  of  1766,  on  syrups  and  molasses  imported  from  any 
place  except  the  Island  of  Dominica,  and  on  coffee  or 
pimento  (allspice)  imported  from  any  British  Colony,  and 
on  tea,  and  the  Navigation  Act  restricting  the  commerce 
of  the  Colonies  to  Great  Britain  remained  in  force. 

There  were,  however,  many  statutes  in  force  in  the 
Colonies  and  actually  put  into  execution  there,  during 
the  period  from  1770  to  1774,  which  could  not  by  any 
stretch  of  the  imagination  be  classed  as  taxing  or  trade- 
regulating  statutes  or  as  statutes  incidental  to  the  exer- 
cise of  the  power  of  taxation,  or  the  power  to  regulate 
trade,  to  which  the  Americans  strenuously  and  properly 
objected.  The  annual  statutes  providing  for  the  quar- 
tering of  troops  in  America  at  the  expense  of  the  Colonies, 
in  public-houses,  uninhabited  dwellings,  and  barns,  when 
the  barracks  were  insufficient,  and  for  the  furnishing  of 
supplies  to  the  troops  partly  at  the  expense  of  the  Colo- 
nies, and  for  the  impressing  of  wagons,  etc.,  continued  to 
be  passed,  and  the  suspension  of  the  sittings  of  the  Gen- 
eral Assembly  of  New  York  for  two  years,  until  it  com- 
plied   with  the  statute,  had  made  it   evident    that   the 


Realm,-not  Empire,  1 769-1 774       253 

British  claim  in  this  respect  was  intended  to  be  enforced. 
After  the  withdrawal  of  the  troops  from  Boston  on  March 
12,  1770,  consequent  upon  the  Boston  Massacre,  care  was 
taken  to  dispose  the  troops  so  that  they  should  not  come 
into  collision  with  the  people,  but  this  was  the  only  con- 
cession made.  The  Act  of  1764,  prohibiting  the  issue  of 
bills  of  credit  by  the  Colonies,  continued  in  force  except 
as  modified  in  favor  of  New  York  in  1770;  and  the  Act 
of  1773*  permitting  the  Colonies  to  make  bills  of  credit  a 
legal  tender  for  taxes  and  public  dues,  did  not  alter  the 
hostility  of  the  Colonies  to  this  kind  of  regulation.  The 
claim  made  by  the  British  Government,  in  1769,  of  a  right 
to  have  persons  charged  with  treason  in  the  Colonies  tried 
in  England,  under  a  statute  of  Henry  VIII.,  was  re- 
newed by  the  Act  of  1772,  which  permitted  the  King  in 
Council,  by  order,  to  require  any  person  charged  with  de- 
stroying any  British  dockyard,  magazine,  ships,  ammuni- 
tion, or  stores,  to  be  tried  in  England.  The  statute  of 
1765,  relating  to  the  Post  Office,  fixing  the  rates  of  post- 
age on  letters  and  packages  between  points  wholly  within 
the  Colonies,  continued  in  force  during  all  this  period, 
and  was  objected  to  by  the  Colonies  as  an  interference 
with  their  constitutional  rights. 

In  order  to  make  a  successful  defence  against  these 
various  acts  of  the  British  Government  which  the  Ameri- 
cans regarded  as  infringements  of  their  constitutional 
rights,  it  was  plainly  necessary  for  them  to  base  their 
argument  upon  some  ground  which  would  be  equally 
good  against  tax  legislation  and  every  other  kind  of  legis- 
lation which  they  regarded  as  objectionable.  The  propo- 
sition that  they  were  entitled  to  the  same  rights  as  if 
they  were  Englishmen  had  been  shown  by  the  British 
Government  to  be  fallacious,  by  reducing  the  tariff  on 
the  Americans  so  that  they  were  taxed  less  by  tariff  du- 
ties than  Englishmen  were.  If  the  Americans  were 
entitled  to  the  rights  of  Englishmen,  they  certainly  could 


254  The  Administration  of  Dependencies 

not  complain  if  they  were  treated  by  the  British  Govern- 
ment better  than  Englishmen.  This  was  particularly  the 
case  with  tea.  In  1767,  by  the  Tariff  Act,  the  tariff  on 
tea  was  reduced  below  the  tariff  which  Englishmen  had 
to  pay,  and  by  another  Act  of  the  same  year,  tea  was  al- 
lowed, for  five  years  from  July  5,  1767,  to  pass  through 
Great  Britain  to  America  without  any  duty,  so  that  from 
July  5,  1767,  until  July  5,  1772,  when  this  arrangement 
expired,  the  Americans  got  their  tea  at  a  less  price  than 
Englishmen.  After  the  expiration  of  this  arrangement, 
the  Americans  still  paid  less  than  Englishmen,  for  though 
they  had  to  pay  the  tariff  on  importation  both  into 
England  and  into  America,  Englishmen  had  to  pay  the 
tariff  on  importation  into  England  and  an  inland  duty 
exceeding  the  amount  of  the  duty  on  importation  into 
America. 

The  tax  on  the  tea  imported  into  America  in  the  fall 
and  winter  of  1773,  in  the  ships  chartered  by  the  East 
India  Company,  was  smaller  than  the  Americans  had  been 
paying  on  tea  for  more  than  a  year,  since  under  the  Act 
of  1773  the  tariff  on  importations  of  tea  into  England 
was  repaid  or  released  by  the  Government  on  the  expor- 
tation of  the  tea  to  America.  In  searching  for  the  in- 
tense antipathy  manifested  by  the  American  Colonies  to 
this  importation  of  tea,  therefore,  it  is  necessary  not  to 
lay  too  much  stress  on  the  fact  that  it  was  taxed  by 
the  British  Government.  It  was  quite  as  much  because 
the  tea  imported  was  equitably  owned  by  the  State  of 
Great  Britain,  so  that  the  act  of  importation  was  the  vir- 
tual establishment  of  a  monopoly  in  America,  as  because 
it  was  taxed,  that  its  importation  was  objectionable. 

The  facts  out  of  which  arose  the  equitable  ownership 
by  the  British  Government  of  the  tea  attempted  to  be 
imported  were  as  follows:  The  East  India  Company, 
which  was  the  successor  of  companies  which  had  traded 
under  royal  charters    since    1600,  existed  in    1773,   not 


Realm,-not  Empire,  1 769-1 774       255 

under  a  royal  charter,  but  under  a  charter  granted  by  Act 
of  Parliament  originally  enacted  in  1709,  and  continued 
by  Acts  of  17 12,  1730,  and  1769,  which  conferred  upon 
the  Company  powers  of  government  to  some  extent. 
It  was  not  a  guild,  but  an  ordinary  joint-stock  corpora- 
tion, in  which  any  one  could  be  a  member  who  should 
purchase  its  shares.  By  Clive's  victory  at  Plassy  in  1757, 
over  the  forces  of  the  East  Indians  and  French,  the  Com- 
pany had  obtained  territorial  rights  in  and  near  Calcutta 
by  possession  growing  out  of  conquest,  which,  in  1765, 
were,  by  the  recognition  or  grant  of  the  Mogul  Emperor, 
converted  into  rights  of  fiscal  and  judicial  administration 
over  a  large  region.  By  other  victories  over  the  French, 
followed  by  the  Treaty  of  Paris  in  1763,  the  French 
power  in  India  ceased  to  exist.  In  1772,  the  affairs  of 
the  Company,  for  several  different  reasons,  became  much 
involved,  its  principal  debts  being  one  of  iJ" 600,000  to  the 
State  of  Great  Britain  for  duties  unpaid,  and  one  of  the 
same  amount  to  the  Bank  of  England  for  money  bor- 
rowed ;  and,  as  it  could  not  raise  money  from  private 
sources  to  tide  it  over  the  difficulty,  it  became  necessary 
for  it  either  to  go  into  bankruptcy  or  to  be  supported  by 
a  loan  from  the  State  of  ;^  1,400,000.  Great  Britain 
could  not  afford  to  let  the  Company  fail,  as  the  Company 
was  acting  as  its  officer  in  the  part  of  India  over  which  it 
had  obtained  governmental  power.  The  native  popula- 
tion was  acquainted  with  the  Company  and  feared  it,  and 
the  Company  was  acquainted  with  the  ways  of  the  na- 
tives. The  situation  required  that  the  Company  should 
not  be  abolished,  but  that  the  enterprise  should  become 
partly  public  and  partly  private,  both  in  order  that  the 
Government  might  have  a  hand  in  the  management  of 
the  Company  so  as  to  protect  the  interests  of  Great 
Britain  as  creditor,  and  in  order  that  it  might  cause  to 
be  fulfilled  the  obligations  of  Great  Britain,  as  the  Im- 
perial  State,   in  the  part  of  India  which  had,  to  some 


256  The  Administration  of  Dependencies 

extent,  become  dependent  upon  Great  Britain.  Conse- 
quently, by  an  Act  of  the  year  1773,  Great  Britain  loaned 
;£i,400,cxx)  to  the  Company,  on  the  security  of  all  the 
tea  then  in  the  Company's  English  warehouses,  amount- 
ing to  17,000,000  pounds,  and  by  the  Regulating  Act  for 
India  of  1773,  so  called,  entitled  "An  Act  for  Establish- 
ing Certain  Regulations  for  the  Better  Management  of 
the  Affairs  of  the  East  India  Company,"  provided  for 
governmental  supervision  of  the  affairs  of  the  Company, 
though  the  control  of  its  affairs  in  the  first  instance  was 
left  in  the  hands  of  the  Board  of  Directors  of  the  Com- 
pany. The  Regulating  Act  put  an  end  to  the  practice  of 
electing  the  whole  Board  of  Directors  annually,  and  re- 
quired that  only  one  fourth  of  the  Board  of  twenty-four 
members  should  be  elected  each  year,  so  as  to  prevent 
radical  changes  of  policy  which  might  endanger  both  the 
British  power  and  the  British  loan  to  the  Company,  and 
required  monthly  reports  from  the  Board  of  Directors 
to  the  head  of  the  Treasury  respecting  all  matters  relat- 
ing to  the  revenues  of  the  Company,  and  to  the  Secretary 
of  State  for  the  Southern  Department  respecting  all  mat- 
ters relating  to  civil  and  military  affairs  and  government. 
In  addition  to  this,  a  Supreme  Court  of  Judicature  was 
created  to  sit  at  Calcutta,  for  the  part  of  India  under  the 
jurisdiction  of  the  East  India  Company,  the  judges  of 
which  were  to  be  appointed  by  the  Crown. 

Contemporaneously  with  the  Loan  Act  and  the  Regu- 
lating Act,  and  as  a  part  of  the  same  transaction.  Parlia- 
ment passed  another  Act,  which  permitted  the  duties 
collectible  on  importation  of  tea  into  Great  Britain  to  be 
drawn  back  or  released  as  respects  teas  taken  from  the 
warehouses  to  be  exported  to  America,  doubled  the  de- 
posit required  of  persons  buying  tea  at  auction  from  the 
warehouses,  making  it  ;^4  per  chest  instead  of  £2, — thus 
discouraging  private  individuals  from  buying  at  auction 
for  exportation, — and  provided  as  follows: 


Realm,-not  Empire,  1 769-1 774       257 

That  it  shall  and  may  be  lawful  for  the  Commissioners  of 
his  Majesty's  Treasury,  or  any  three  or  more  of  them,  upon 
application  made  to  them  by  the  said  United  Company  of 
Merchants  of  England  Trading  to  the  East  Indies,  to  grant  a 
license  or  licenses  to  the  said  United  Company,  to  take  out 
of  their  warehouses,  without  the  same  having  been  put  up  to 
sale,  and  to  export  to  any  of  the  British  Plantations  in  Amer- 
ica, or  to  any  parts  beyond  the  seas,  such  quantity  or  quantities 
of  tea  as  the  said  Commissioners  of  his  Majesty's  Treasury 
or  any  three  or  more  of  them,  or  the  High  Treasurer  for  the 
time  being,  shall  think  proper  and  expedient,  without  incur- 
ring any  penalty  or  forfeiture  for  so  doing  .  .  .  and  to 
export  such  tea  to  any  of  the  British  Colonies  or  Plantations 
in  America,  discharged  from  the  payment  of  any  duties  or 
customs  whatsoever. 


After  the  passage  of  this  Act,  the  Ministry  insisted 
that  the  East  India  Company  should  send  cargoes  of  tea 
to  America.  The  officers  of  the  Company  remonstrated, 
on  the  ground  that  they  could  not  safely  do  so  unless  the 
Company  paid  the  duty  in  advance  and  landed  the  goods 
duty  free,  but  the  Ministry  insisted  that  the  consignees 
in  America  should  pay  the  duty,  partly,  no  doubt,  because 
they  feared  that  such  a  course  as  that  suggested  by  the 
Company  would  prejudice  the  claim  of  Great  Britain  to 
tax  the  Colonies,  and  hence,  as  they  believed,  to  legisla- 
tive supremacy  over  them,  but  principally  because  it  was 
a  part  of  their  plan  to  make  the  collection  of  the  duty 
certain,  by  requiring  tea  to  be  imported  in  cargo  lots  which 
could  not  possibly  be  smuggled.  The  tea  in  the  English 
warehouses  equitably  belonged  to  Great  Britain,  and,  had 
the  cargoes  of  the  tea-ships  been  landed  in  the  Colonies 
and  sold  there,  all  the  proceeds,  and  not  merely  the  three 
pence  per  pound  duty,  would  have  gone  into  the  British 
Treasury.  It  was  for  the  interest  of  Great  Britain,  under 
such  circumstances,  that  it  should  get  as  high  a  price  as 


258  The  Administration  of  Dependencies 

possible  for  the  tea,  and  that  as  many  people  in  the  Colo- 
nies as  possible  should  buy  tea,  since  the  more  there  was 
realized,  the  sooner  would  it  collect  from  the  Company 
what  was  owing.  The  situation  was,  therefore,  the  same 
in  effect  as  if  the  State  had  granted  to  the  Company  the 
monopoly  of  supplying  tea  to  the  inhabitants  of  America, 
and  had  pledged  itself  to  foster  the  monopoly  by  every 
direct  and  indirect  means.  As  the  consumption  of  tea 
by  the  people  of  the  Colonies  would  have  pecuniarily 
benefited  Great  Britain,  consumers  of  tea  would  have 
been  regarded  by  the  British  Government  as  its  friends 
and  non-consumers  as  its  enemies,  and  the  people  of  the 
Colonies  would  have  been,  in  effect,  subject  to  sumptuary 
regulations  of  the  British  Government,  enforced  through 
the  instrumentality  of  spies  and  informers.  That  it  was 
this  monopoly  feature  which  made  the  importation  of  the 
tea  particularly  odious  is  shown  by  an  extract  from  a 
Philadelphia  newspaper  of  January  3,  1774,  quoted  in  the 
Principles  and  Acts  of  the  Revolution  by  Hezekiah  Niles, 
which  read : 

Upon  the  first  advice  of  this  measure,  a  general  dissatisfac- 
tion was  expressed  that,  at  the  time  when  we  were  struggling 
with  this  oppressive  Act  imposing  a  duty  on  tea,  and  an 
agreement  not  to  import  tea  while  subject  to  duty,  our  fellow 
subjects  in  England  should  form  a  measure  so  directly  tending 
to  enforce  that  Act  and  again  embroil  us  with  our  parent  State. 
When  it  was  also  considered  that  the  proposed  mode  of  disposing 
of  the  tea  tended  to  a  monopoly,  ever  odious  in  a  free  country,  a 
universal  disapprobation  showed  itself  throughout  the  city. 

The  importation  of  the  tea,  under  the  circumstances, 
was  a  definite  attack  upon  the  member-statehood  of  the 
Colonies  in  the  Federal  Empire  in  four  different  ways : 
first,  it  was  an  execution  of  a  taxing  statute  passed  by 
the  Central  Government  of  Great  Britain  under  a  claim 


Realm,-not  Empire,  1 769-1 774       259 

that,  as  the  Central  Government  of  the  British  Empire, 
it  had  unconditional  and  unlimited  power;  second,  it  was 
an  attempt  to  collect  money  from  the  Colonies  to  be  ex- 
pended for  the  maintenance  of  their  Local  Governments ; 
third,  it  was  an  attempt  to  establish  a  monopoly  of  sup- 
plying tea  to  the  Colonies  in  favor  of  an  English  corpora- 
tion ;  and  fourth,  it  was  an  attempt  to  subject  the  people 
of  the  Colonies  to  indefinite  sumptuary  regulations,  en- 
forced through  spies  and  informers. 

The  Act  for  closing  the  port  of  Boston  and  for  depriv- 
ing the  Province  of  Massachusetts  Bay  of  its  House  of 
Representatives  and  elected  Council,  passed  in  the  early 
part  of  1774,  and  the  other  acts  and  measures  for  the 
coercion  of  the  Colonies,  were  war  measures,  and  are 
hence  of  little  consequence  from  a  constitutional  aspect, 
except  so  far  as  they  showed  a  determination,  on  the  part 
of  the  British  Government,  to  enforce  its  policy  of  de- 
priving the  Colonies  of  their  member-statehood  in  the 
Federal  Empire,  and  to  convert  them  into  mere  integral 
and  unrepresented  parts  of  a  Unitary  State. 

The  Act  of  1774,  by  which  the  Province  of  Quebec, — 
which,  under  the  Proclamation  of  1763,  included  only 
what  is  now  the  continental  part  of  the  Dominion  of 
Canada, — was  enlarged  so  as  to  include  the  whole  of  what 
was  afterwards  known  as  the  Northwest  Territory,  and 
was  given  a  government  by  a  royal  Governor  and  Coun- 
cil, and  by  which  the  Roman  Catholic  religion  was  placed 
under  governmental  protection,  was  regarded  in  the 
Colonies  as  a  direct  attack  upon  their  member-statehood 
in  so  far  as  it  deprived  them  of  the  benefit  of  free  ex- 
pansion into  the  Western  region  and  the  control  of  it  for 
the  purposes  of  their  own  development,  and  as  an  indirect; 
attack,  in  so  far  as  it  almost  surrounded  them  with  a  Gov- 
ernment directly  dependent  on  the  British  Government, 
in  which  the  people  had  no  representation  whatever. 

Thus,  in  the  spring  of  1774,  it  was  no  longer  open  to 


26o  The  Administration  of  Dependencies 

doubt  but  that  the  British  Ministry  would  convert  the 
British  Empire  into  a  British  Realm  unless  the  Colonies 
could  prevent  it.  Under  these  circumstances,  the  Con- 
gress at  Philadelphia,  to  devise  measures  for  concerted 
action,  became  a  political  necessity. 


CHAPTER   XV 

THE  FEDERAL  EMPIRE  DEFINED,    1774 

DURING  the  quiescent  period  from  1770  to  1774, 
the  most  noteworthy  contribution  to  the  thought 
on  the  subject  of  the  constitutional  relationship 
between  Great  Britain  and  the  Colonies  was  a  pamphlet 
written  by  James  Wilson  of  Philadelphia  (who  afterwards 
became  an  Associate  Justice  of  the  Supreme  Court  of  the 
United  States  at  its  first  formation),  entitled  Considera- 
tions on  the  Nature  and  Extent  of  the  Legislative  Authority 
of  the  British  Parliament. 

In  this  pamphlet,  written  when  Wilson  was  twenty- 
eight  years  of  age  and  a  student  in  the  ofifice  of  John 
Dickinson,  he  took  the  ground  that  the  King  was  the  sole 
representative  of  the  State  of  Great  Britain,  for  the  ad- 
ministration of  its  relations  with  the  Colonies,  thus  deny- 
ing any  power  whatever  to  Parliament  in  this  respect. 
After  arguing  that  the  liberties  of  the  people  of  America 
could  not,  in  the  nature  of  things,  be  derived  from  the 
will  of  the  people  of  England,  but  were  natural  rights, 
and  that  they  could  not  be  derived  from  the  adjudication 
of  the  people  of  England,  because  they  were  interested 
parties  and  an  incompetent  and  partial  tribunal,  he  con- 
cluded, after  an  examination  of  the  cases  and  of  the 
methods  of  administration  of  the  Colonies  theretofore 
practiced,  that  the  dependence  of  the  Colonies  was  wholly 
upon  the  King,  and  that,  in  the  performance  of  his  func- 
tions, the  King  had  legislative  powers  within  a  definite 
sphere.     These  legislative  powers  Wilson  derived  from 

261 


262  The  Administration  of  Dependencies 

the  principle  of  allegiance.  As  it  is  now  apparent  that  the 
whole  doctrine  of  allegiance  has  nothing  to  do  with  the 
question  of  constitutional  relationship  between  political 
communities  in  the  time  of  peace,  and  has  its  sole  sig- 
nificance only  as  bearing  on  the  relations  between  the 
State  and  its  inhabitants  arising  out  of  war,  present  or 
prospective,  it  is  unnecessary  to  consider  what  he  said  on 
this  subject.  The  closing  words  of  the  essay,  on  the  sub- 
ject of  the  relationship  of  the  King  to  the  Colonies,  were 
as  follows : 

Now  we  have  explained  the  dependence  of  the  Americans. 
They  are  the  subjects  of  the  King  of  Great  Britain.  They  owe 
him  allegiance.  They  have  a  right  to  the  benefits  which  arise 
from  preserving  that  allegiance  inviolate.  They  are  liable  to 
the  punishments  which  await  those  who  break  it.  This  is  a 
dependence,  which  they  have  always  boasted  of.  The  prin- 
ciples of  loyalty  are  deeply  rooted  in  their  hearts;  and  there 
they  will  grow  and  bring  forth  fruit,  while  a  drop  of  vital  blood 
remains  to  nourish  them.  Their  history  is  not  stained  with 
rebellious  and  treasonable  machinations;  an  inviolable  attach- 
ment to  their  Sovereign,  and  the  warmest  zeal  for  his  glory, 
shine  in  every  page. 

From  this  dependence,  abstracted  from  every  other  source, 
arises  a  strict  connection  between  the  inhabitants  of  Great 
Britain  and  those  of  America.  They  are  fellow-subjects;  they 
are  under  allegiance  to  the  same  Prince;  and  this  union  of 
allegiance  naturally  produces  a  union  of  hearts.  It  is  also 
productive  of  a  union  of  measures  through  the  whole  British 
dominions.  To  the  King  is  intrusted  the  direction  and  man- 
agement of  the  great  machine  of  government.  He  therefore 
is  fittest  to  adjust  the  different  wheels,  and  to  regulate  their 
motions  in  such  a  manner  as  to  co-operate  in  the  same  general 
designs.  He  makes  war:  he  concludes  peace:  he  forms  alli- 
ances: he  regulates  domestic  trade  by  his  prerogative,  and  di- 
rects foreign  commerce  by  his  treaties  with  those  nations,  with 
whom  it  is  carried  on.     He  names  the  officers  of  government; 


The  Federal  Empire  Defined,  1774    263 

so  that  he  can  check  every  jarring  movement  in  the  adminis- 
tration. He  has  a  negative  on  the  different  Legislatures 
throughout  his  dominions,  so  that  he  can  prevent  any  repug- 
nancy in  their  different  laws. 

The  connection  and  harmony  between  Great  Britain  and  us, 
which  it  is  her  interest  and  ours  mutually  to  cultivate,  and  on 
which  her  prosperity,  as  well  as  ours,  so  materially  depends, 
will  be  better  preserved  by  the  operation  of  the  legal  preroga- 
tives of  the  Crown,  than  by  the  exertion  of  an  unlimited 
authority  by  Parliament. 

To  Wilson's  essay  there  was  appended,  in  the  printed 
pamphlets,  the  following  note,  which,  though  not  signed, 
was  evidently  written  by  Dickinson,  since,  in  his  next 
published  pamphlet,  to  which  reference  will  hereafter  be 
made,  Dickinson  showed  a  decided  tendency  toward  Wil- 
son's view  in  the  modified  form  suggested  by  this  note, 
and  since  Wilson's  essay  was  published  almost  contem- 
poraneously with  Dickinson's  pamphlet  in  which  these 
views  were  expressed : 

After  considering,  with  all  the  attention  of  which  I  am 
capable,  the  foregoing  opinion — that  all  the  different  members 
of  the  British  Empire  are  distinct  States,  independent  of  each 
other,  but  connected  together  under  the  same  Sovereign  in 
right  of  the  same  Crown — I  discover  only  one  objection  that 
can  be  offered  against  it.  But  this  objection  will,  by  many,  be 
deemed  a  fatal  one.  "  How,"  it  will  be  urged,  "  can  the  trade 
of  the  British  Empire  be  carried  on,  without  some  power,  ex- 
tending over  the  whole,  to  regulate  it  ?  The  legislative  au- 
thority of  each  part,  according  to  your  doctrine,  is  confined 
within  the  local  bounds  of  that  part:  how,  then,  can  so  many 
interfering  interests  and  claims,  as  must  necessarily  meet  and 
contend  in  the  commerce  of  the  whole,  be  decided  and 
adjusted?  " 

Dickinson's  criticism,  it  will  be  perceived,  amounted 
to  his  asking  the  question  :  Granted  that  the  functions  of 


264  The  Administration  of  Dependencies 

Great  Britain,  as  the  Imperial  State,  toward  the  Colonies, 
are  such  as  can  be  performed  properly  only  by  the  expert 
branch  of  the  British  Government,  how  can  these  func- 
tions be  performed  except  through  the  medium  of  legis- 
lation, and  how  can  the  King  legislate? 

To  this  Wilson  replied  in  a  note  which,  in  the  pam- 
phlets, was  printed  immediately  below  Dickinson's.  This 
note  was  as  follows: 

Permit  me  to  answer  these  questions  by  proposing  some 
others  in  my  turn.  How  has  the  trade  of  Europe — how  has 
the  trade  of  the  whole  globe,  been  carried  on  ?  Have  those 
widely  extended  plans  been  formed  by  one  superintending 
power  ?  Have  they  been  carried  into  execution  by  one  super- 
intending power  ?  Have  they  been  formed — have  they  been 
carried  into  execution,  with  less  conformity  to  the  rules  of  jus- 
tice and  equality,  than  if  they  had  been  under  the  direction 
of  one  superintending  power  ? 

It  has  been  the  opinion  of  some  politicians,  of  no  inferior 
note,  that  all  regulations  of  trade  are  useless;  that  the  greatest 
part  of  them  are  hurtful;  and  that  the  stream  of  commerce 
never  flows  with  so  much  beauty  and  advantage,  as  when  it  is 
not  diverted  from  its  natural  channels.  Whether  this  opinion 
is  well  founded  or  not,  let  others  determine.  Thus  much  may 
certainly  be  said,  that  commerce  is  not  so  properly  the  object 
of  laws,  as  of  treaties  and  compacts.  In  this  manner,  it  has 
been  always  directed  among  the  several  nations  of  Europe. 

But  if  the  commerce  of  the  British  Empire  must  be  regulated 
by  a  general  superintending  power,  capable  of  exerting  its  in- 
fluence over  every  part  of  it,  why  may  not  this  power  be  in- 
trusted to  the  King,  as  a  part  of  the  royal  prerogative  ?  By 
making  treaties,  which  it  is  his  prerogative  to  make,  he  directs 
the  trade  of  Great  Britain  with  the  other  States  of  Europe  :  and 
his  treaties  with  those  States  have,  when  considered  with  re- 
gard to  his  subjects,  all  the  binding  force  of  laws  upon  them, 
(i.  Bl.  Com.  252.)  Where  is  the  absurdity  in  supposing  him 
yested  with  the  same  right  to  regulate  the  commerce  of  the 
distinct  parts  of  his  dominions  with  one  another,  which  he  has 


The  Federal  Empire  Defined,  1774    265 

to  regulate  their  commerce  with  foreign  States  ?  If  the  history 
of  the  British  Constitution,  relating  to  this  subject,  be  carefully 
traced,  I  apprehend  we  shall  discover,  that  a  prerogative  in 
the  Crown,  to  regulate  trade,  is  perfectly  consistent  with  the 
principles  of  law.  We  find  many  authorities  that  the  King 
cannot  lay  impositions  on  traffic;  and  that  he  cannot  restrain 
it  altogether,  nor  confine  it  to  monopolists;  but  none  of  the 
authorities,  that  I  have  had  an  opportunity  of  consulting,  go 
any  farther.  Indeed  many  of  them  seem  to  imply  a  power  in 
the  Crown  to  regulate  trade,  where  that  power  is  exerted  for 
the  great  end  of  all  prerogative — the  public  good. 

If  the  power  of  regulating  trade  be,  as  I  am  apt  to  believe 
it  to  be,  vested,  by  the  principles  of  the  Constitution,  in  the 
Crown,  this  good  effect  will  flow  from  the  doctrine;  a  perpet- 
ual distinction  will  be  kept  up  between  that  power,  and  a 
power  of  laying  impositions  on  trade.  The  prerogative  will 
extend  to  the  former;  it  can,  under  no  pretence,  extend  to  the 
latter:  as  it  is  given,  so  it  is  limited,  by  the  law. 

Dickinson's  criticism  thus  forced  Wilson  finally  to  take 
the  position  that  the  King  of  Great  Britain  had,  and  of 
right  ought  to  have,  under  a  proper  constitution  of  the 
British  Federal  Empire,  the  right  to  legislate  to  the  ex- 
tent necessary  to  enable  the  State  of  Great  Britain  to  ful- 
fil its  functions  as  the  Imperial  State.  This  conclusion 
was  strictly  logical,  so  long  as  Parliament  persisted  in  its 
claim  that  its  power  in  the  Empire,  as  well  as  in  the 
Realm,  was  unconditioned  and  unlimited.  As  that  claim 
could  not  be  allowed  by  the  Colonies,  they  necessarily 
had  to  find  an  Imperial  Legislature  somewhere  in  the 
whole  political  organism  composed  of  Great  Britain  and 
the  Colonies,  which  could  exercise  powers  of  legi.e'Iation 
to  the  extent  necessary  to  effectuate  the  dispositions  re- 
garding the  Colonies  made  by  the  King  in  Council,  or  to 
admit  that  they  were  seeking  independence.  Such  an 
Imperial  Legislature  Wilson  found  in  the  King  in 
Council. 


266  The  Administration  of  Dependencies 

Such  a  doctrine  was  dangerous,  in  that  it  tended  to 
weaken  the  hold  which  the  people  of  England  had  over 
the  King,  under  the  Act  of  Settlement  of  1689,  by  ad- 
mitting him  to  have  legislative  power  otherwise  than  in 
subordination  to  Parliament,  and  because  it  tended  to  lead 
to  the  belief  that  the  Colonies  stood  in  that  slight  and 
shadowy  relation  toward  Great  Britain  which  is  now 
known  as  "personal  union,"  which  exists  when  two  inde- 
pendent States  have  the  same  person  as  Chief  Executive, 
but  are  otherwise  entirely  distinct  from  one  another. 

Those  to  whom  Wilson  showed  his  essay,  when  it  was 
first  written,  evidently  thought  it  dangerous  on  these  ac- 
counts. Wilson  stated,  in  the  "Advertisement,"  printed 
at  the  beginning  of  the  pamphlet,  that  the  essay  was 
originally  written  "during  the  late  non-importation  agree- 
ment; but  that  agreement  being  dissolved  before  the 
sheets  were  ready  for  the  press,  it  was  judged  unseason- 
able to  publish  them."  The  non-importation  agreement 
in  Philadelphia  was  dissolved  in  September,  1770.  It 
was  evidently  considered  wiser  by  Dickinson,  Wilson's 
preceptor,  that,  just  at  the  time  that  matters  were  be- 
coming quiescent,  a  pamphlet  should  not  be  published  in 
America  which  so  greatly  aggrandized  the  King  at  the 
expense  of  Parliament,  and  which  might  so  easily  be  mis- 
construed into  a  claim  of  entire  legislative  independence 
on  the  part  of  the  Colonies. 

One  of  the  most  important  pamphlets  brought  out  dur- 
ing the  discussion  in  the  year  1774,  which  arose  on  ac- 
count of  the  retaliatory  acts  of  the  British  Government 
after  the  destruction  of  the  tea  in  Boston  Harbor,  was 
Governor  Bernard's  Select  Letters  on  the  Trade  and  Gov- 
ernment of  America,  from  which  extracts  have  already 
been  quoted.  From  the  preface  of  this  pamphlet,  it  ap- 
pears that  his  opinions  expressed  in  1765  had  undergone 
some  modification,  and  that,  in  1774,  he  was  inclining  to 
the  opinion  that,  if  the  Americans  were  admitted  to  be 


The  Federal  Empire  Defined,  1774    267 

heard  in  Parliament,  it  ought  to  be  as  parties  or  witnesses 
summoned  in  order  that  Parliament  might  inform  itself 
of  the  circumstances  before  making  an  adjudication  and 
disposition  concerning  the  rights  of  the  respective  Col- 
onies, and  not  as  participants  in  a  legislative  or  contract- 
ual act.  Bernard's  final  conclusion  seems  to  have  been 
that  it  was  the  business  of  Parliament  to  make  "  settle- 
ments of  the  Governments  of  the  Colonies,"  according 
to  which  the  governmental  power  should  be  divided,  in 
distinct  spheres,  between  Great  Britain  and  the  Colonies. 
In  this  preface  he  said  : 

At  the  time  of  the  passage  of  the  Act  of  Parliament  for 
raising  money  in  America  by  a  stamp  duty,  there  was  no  fixed 
idea  of  the  relation  between  Great  Britain  and  America;  not 
one  of  the  Governments  there  had,  what  not  one  of  them 
should  have  been  without,  a  Parliamentary  Constitution. 
And  therefore  it  is  not  to  be  wondered  at  that,  when  they 
were  called  upon  to  pay  money  to  the  order  of  Parliament, 
they  should  answer — "  We  know  not  what  is  the  relation  be- 
tween you  and  us,  that  authorizes  you  to  raise  money  from  us 
or  our  lands." 

And,  indeed,  it  may  afford  cause  of  wonder  that,  in  the 
course  of  one  hundred  and  fifty  years,  (for  so  many  it  is,  at 
least,  since  Governments  were  first  constituted  in  America), 
there  never  has  been  a  Parliamentary  settlement  of  the  Ameri- 
can Governments,  or  any  adjustment  of  the  nature  of  the  sub- 
jection, and  the  mode  of  subordination,  that  was  due  to,  or 
expected  from  the  dependent  Governments  to  the  Imperial 
State.  Before  the  Revolution  [of  1688],  this  neglect  is  to  be 
accounted  for;  the  rights  of  Government  were  then  not  well 
understood  in  England,  and  in  America  they  were  wholly 
misconceived.  The  lands  acquired  by  the  English  there, 
and  the  government  of  them,  were  supposed  to  be  the  abso- 
lute property  of  the  King,  and  were  disposed  of  accordingly. 
The  Parliament  was  scarce  allowed  to  have  anything  to  do 
with  them,  and  interfered  very  little  in  their  government. 


268  The  Administration  of  Dependencies 

But  at  the  Revolution  [of  1688],  when  the  rights  of  Govern- 
ment were  well  understood  and  formally  settled;  when  the 
power  of  Parliament  was  greatly  enlarged,  and  allowed  to  ex- 
tend over  all  the  dependencies  of  the  Crown  of  Great  Britain, 
as  well  as  its  own  Kingdom;  at  that  time,  and  ever  since,  it  has 
been  an  unfortunate  omission  of  policy  that  the  constitutions 
of  the  Governments  of  America  were  not  settled  in  Parliament, 
and  the  rights  of  the  Imperial  State  over  them  acknowledged, 
with  such  regulations  and  limitations  as  the  several  natures  of 
them,  upon  constitutional  principles  and  good  policy,  should 
require;  that  we  might  not,  at  this  time  of  day,  when  the  Em- 
pire is  so  greatly  enlarged,  and  is  still  increasing,  be  at  a  loss 
for  principles  upon  which  the  connection  of  its  subordinate 
Governments  with  the  Imperial  State  may  be  best  preserved, 
and  the  union  of  the  whole  maintained  and  continued. 

But  no  care  has  been  taken  of  this  important  business;  and 
America  has  been  left  to  that  miserable  servitude  where  law  is 
uncertain  and  unknown.  Instead  of  a  certain  constitutional 
law,  adapted  to  the  nature  of  the  Governments  established  by 
the  dependent  or  subordinate  States,  America  has  been 
hitherto  governed  by  temporary  expedients,  which  have  some- 
times been  allowed  to  have  the  force  of  laws,  and  have 
sometimes  been  refused  it.  In  this  state  of  things,  it  was  im- 
possible but  the  time  would  come  when  the  authority  of  Great 
Britain  over  America  would  be  brought  into  question. 

Bernard  had  nearly  thought  out  the  Federal  Empire. 
The  Imperial  State,  according  to  him,  vi^as,  through  its 
Parliament,  to  "settle"  the  "constitutions  of  the  Amer- 
ican Governments,"  and  to  abide  by  such  "settlements." 
Such  "  settlements  "  could  not  fail  to  partake  of  the 
nature  of  adjudications.  Such  Acts  of  Parliament  were 
not  acts  of  legislation  in  the  ordinary  sense ;  they  were 
acts  of  disposition  or  adjudication,  and  of  legislation  to 
effectuate  the  adjudication. 

Edmund  Burke,  in  his  speech  in  opposition  to  Ameri- 
can taxation,  delivered  in  Parliament  on  April  19,  1774, 


The  Federal  Empire  Defined,  1774    269 

distinguished  between  the  unconditioned  and  unlimited 
power  of  Parliament  within  the  Realm  of  Great  Britain, 
and  its  power  as  the  representative  of  Great  Britain,  as 
the  Imperial  State,  so  conditioned  and  limited  as  to  be 
only  a  power  of  "provident  and  beneficent  superintend- 
ence "  of  the  Colonies.     In  that  speech  he  said : 

What  is  to  become  of  the  Declaratory  Act  asserting  the 
entireness  of  British  legislative  authority,  if  we  abandon  the 
practice  of  taxation  ? 

For  my  part,  I  look  upon  the  rights  stated  in  that  Act, 
exactly  in  the  manner  in  which  I  viewed  them  on  its  very  first 
proposition,  and  which  I  have  often  taken  the  liberty,  with 
great  humility,  to  lay  before  you.  I  look,  I  say,  on  the  Im- 
perial rights  of  Great  Britain,  and  the  privileges  which  the 
colonists  ought  to  enjoy  under  these  rights,  to  be  just  the  most 
reconcilable  things  in  the  world.  The  Parliament  of  Great 
Britain  sits  at  the  head  of  her  extensive  Empire  in  two  capaci- 
ties: one  as  the  Local  Legislature  of  this  Island,  providing  for 
all  things  at  home,  immediately,  and  by  no  other  instrument 
than  the  Executive  power.  The  other,  and  I  think  her  nobler 
capacity,  is  what  I  call  her  Imperial  character,  in  which,  as 
from  the  throne  of  heaven,  she  superintends  all  the  several 
inferior  Legislatures  and  guides  and  controls  them  all  without 
annihilating  any.  .  .  .  It  is  necessary  to  coerce  the  negli- 
gent, to  restrain  the  violent,  and  to  aid  the  weak  and  deficient, 
by  the  overruling  plenitude  of  her  power.  She  is  never  to 
intrude  into  the  place  of  others,  whilst  they  are  equal  to  the 
common  duties  of  their  institution.  But  in  order  to  enable 
Parliament  to  answer  all  these  duties  of  provident  and  bene- 
ficent superintendence,  her  powers  must  be  boundless.     .    .    . 

Such,  Sir,  is  my  idea  of  the  Constitution  of  the  British 
Empire,  as  distinguished  from  the  Constitution  of  Britain. 

It  has  been  noticed  that  Dulany,  in  1765,  first  used  the 
word  "superintendence  "  to  describe  the  power  of  the  Im- 
perial State,  and  that  he  applied  it  to  the  power  over  the 
American  Colonies  exercised  by  the  British  Parliament, 


270  The  Administration  of  Dependencies 

as  the  representative  of  Great  Britain ;  and  that  Wilson, 
in  his  note  in  answer  to  Dickinson's  criticism,  had  used 
the  expression  "  superintending  power"  to  describe  the 
power  of  Great  Britain,  as  the  Imperial  State,  exercised 
by  the  King  in  Council.  The  distinction  between  the 
"  superintending  power"  of  Parliament  acting  as  agent 
for  Great  Britain  as  the  Imperial  State,  and  the  "  legis- 
lative power  "  of  Parliament  acting  as  the  "Local  Legis- 
lature "  of  Great  Britain,  was,  therefore,  American,  not 
British. 

Burke,  however,  added  to  the  previous  thoughts  by 
pointing  out  that  the  power  of  the  Imperial  State  was  a 
conditioned,  as  distinguished  from  a  limited  power,  when 
he  said:  "In  order  to  enable  Parliament  to  answer  all 
these  duties  of  provident  and  beneficent  superintend- 
ence, her  powers  must  be  boundless."  A  power  of 
"provident  and  beneficent  superintendence  "  is  neces- 
sarily a  power  without  specific  limits  predetermined  by 
an  external  human  power,  but  it  is  conditioned  upon  the 
holder  of  the  power  adjudicating  the  limits  of  his  own 
powers  according  to  his  own  opinion  of  the  necessity  for 
his  interference  in  each  particular  case  as  it  arises,  in 
order  that  the  whole  organism  under  his  superintend- 
ence may  most  perfectly  and  beneficently  perform  its 
functions. 

On  July  18,  1774,  the  inhabitants  of  Fairfax  County, 
Virginia,  at  a  meeting  presided  over  by  George  Wash- 
ington, as  chairman,  adopted  a  series  of  resolutions, 
prepared  by  George  Mason,  which  showed  that  in  Vir- 
ginia the  conception  of  the  British  Empire  as  a  federal 
organism  was  beginning  to  manifest  itself.  In  these  reso- 
lutions it  was  declared : 

That  the  Colony  and  Dominion  of  Virginia  cannot  be  con- 
sidered as  a  conquered  country;  and  if  it  was,  that  the  present 
inhabitants  are  the  descendants,  not  of  the  conquered,  but  of 


The  Federal  Empire  Defined,  1774   271 

the  conquerors.  That  the  same  was  settled  at  the  national 
expense  of  England,  but  at  the  private  expense  of  the  adven- 
turers, our  ancestors,  by  solemn  compact  with,  and  under  the 
auspices  and  protection  of  the  British  Crown ;  upon  which  we 
are  in  every  way  as  dependent  as  the  people  of  Great  Britain, 
and  in  the  same  manner  subject  to  all  his  Majesty's  just, 
legal  and  constitutional  prerogatives. 

As  the  inhabitants  of  the  American  Colonies  are  not,  and 
from  their  situation  cannot  be  represented  in  the  British  Par- 
liament, that  the  legislative  power  here  can  of  right  be  exer- 
cised only  by  our  own  Provincial  Assemblies  or  Parliaments, 
subject  to  the  assent  or  negative  of  the  British  Crown,  to  be 
declared  within  some  proper  limited  time.  But  as  it  was  thought 
just  and  reasonable  that  the  people  of  Great  Britain  should 
reap  advantages  from  these  Colonies  adequate  to  the  protec- 
tion they  afforded  them,  the  British  Parliament  have  claimed 
and  exercised  the  power  of  regulating  our  trade  and  commerce, 
so  as  to  restrain  our  importing  from  foreign  countries  such 
articles  as  they  could  furnish  us  with,  of  their  own  growth  and 
manufacture,  or  exporting  to  foreign  countries  such  articles 
and  portions  of  our  produce,  as  Great  Britain  stood  in  need 
of,  for  her  own  consumption  or  manufactures.  Such  a  power, 
directed  with  wisdom  and  moderation,  seems  necessary  for  the 
general  good  of  that  great  body  politic,  of  which  we  are  a  part  ; 
although  in  some  degree  repugnant  to  the  principles  of  the  Consti- 
tution. Under  this  idea  our  ancestors  submitted  to  it;  the 
experience  of  more  than  a  century,  during  the  government  of 
his  Majesty's  royal  predecessors,  has  proved  its  utility,  and 
the  reciprocal  benefits  flowing  from  it  produced  mutual  un- 
interrupted harmony  and  good  will,  between  the  inhabitants 
of  Great  Britain  and  her  Colonies,  who,  during  that  long 
period,  always  considered  themselves  as  one  and  the  same 
people;  and  though  such  a  power  is  capable  of  abuse,  and  in 
some  instances  has  been  stretched  beyond  the  original  design 
and  institution,  yet  to  avoid  strife  and  contention  with  our 
fellow-subjects,  and  strongly  impressed  with  the  experience 
of  mutual   benefits,    we   always  cheerfully  acquiesced  in  it, 


2  72  The  Administration  of  Dependencies 

while  the  entire  regulation  of  our  internal  policy,  and  giving 
and  granting  our  own  money,  were  preserved  to  our  own 
Provincial  Legislatures. 

That  it  is  the  duty  of  these  Colonies,  on  all  emergencies,  to 
contribute,  in  proportion  to  their  abilities,  situation,  and  cir- 
cumstances, to  the  necessary  charge  of  supporting  and  defend- 
ing the  British  Empire,  of  which  they  are  a  part. 

Washington,  in  giving  his  assent  and  approbation  to 
resolutions  which,  while  not  going  deeply  into  the  details 
of  the  exercise  of  the  power  of  Imperial  State,  went  to 
the  very  bottom  of  the  first  and  vital  question,  What  was 
the  character  and  extent  of  the  power  ? —  showed  his 
characteristic  wisdom  and  good  sense.  No  one  was  more 
ardently  devoted  than  he  to  the  connection  with  Great 
Britain.  With  him,  as  with  the  vast  body  of  thinking 
people  of  America,  the  sole  question  was.  What  kind  and 
degree  of  power  ought  Great  Britain,  as  the  Imperial 
State  of  the  British  Empire,  to  exercise  over  the 
Colonies  under  a  just  Constitution  of  the  Empire?  His 
answer  was:  "A  power  directed  with  wisdom  and 
moderation,  such  as  is  necessary  for  the  general  good  of 
that  great  body  politic  of  which  we  are  a  part," — that  is, 
a  power  exercised  expertly  and  only  to  the  extent  neces- 
sary in  each  particular  case.  Such  a  power  is  exactly 
that  which  an  Imperial  State  exercises  in  a  Federal 
Empire. 

The  most  important  contribution,  however,  which  was 
made  by  any  one  during  the  whole  discussion  preceding 
the  Revolution,  concerning  the  constitutional  relationship 
between  Great  Britain  and  the  Colonies,  was  that  made 
by  Dickinson,  in  July,  1774,  in  his  pamphlet  entitled, 
A  New  Essay  on  the  Constitutional  Power  of  Great  Britain 
over  the  Colonies  in  America. 

The  New  Essay  was  originally  intended  to  be  a  part  of 
the  Instructions  which  the  Pennsylvania  Legislature  were 


The  Federal  Empire  Defined,  1774   273 

to  give  to  the  delegates  to  the  Continental  Congress. 
The  Instructions  were  recommended  by  the  Committee 
of  Safety  of  Pennsylvania,  on  the  report  of  a  sub- 
committee of  which  Dickinson  was  chairman.  It  was 
thought  best  by  the  Committee  of  Safety  that  the 
"Essay"  should  be  separated  from  the  Instructions, 
but  they  ordered  it  published  and  voted  Dickinson  their 
thanks  for  his  labors.  Wilson  was  a  member  of  the 
Committee  of  Safety  and  united  in  this  action. 
In  the  Instructions  it  was  said : 

We  acknowledge  the  prerogatives  of  the  Sovereign,  among 
which  are  included  the  great  powers  of  making  peace  and  war, 
treaties,  leagues  and  alliances  binding  us — of  appointing  all 
officers,  except  in  cases  where  other  provision  is  made  by 
grants  from  the  Crown,  or  laws  approved  by  the  Crown — of 
confirming  or  annulling  every  act  of  our  Assembly  within  the 
allowed  time — and  of  hearing  and  determining  finally,  in 
Council,  appeals  from  our  courts  of  justice.  "  The  preroga- 
tives are  limited,"  as  a  learned  judge  observes, — "  by  bounds 
so  certain  and  notorious,  that  it  is  impossible  to  exceed  them, 
without  the  consent  of  the  people  on  the  one  hand,  or  without, 
on  the  other,  a  violation  of  that  original  contract,  which,  in 
all  States  impliedly,  and  in  ours  most  expressly,  subsists  be- 
tween the  Prince  and  the  subject.  For  these  prerogatives  are 
vested  in  the  Crown  for  the  support  of  society,  and  do  not 
intrench  any  farther  on  our  natural  liberties,  than  is  expedi- 
ent for  the  maintenance  of  our  civil." 

Elaborating  this  thought  in  the  New  Essay,  and  treat- 
ing the  powers  of  the  Crown  as  the  powers  of  the  State 
of  Great  Britain,  Dickinson  said : 

The  Colonies  have  no  other  head  than  the  King  of  England. 

The  person  who  by  the  laws  of  that  Realm  is  King  of  that 

Realm,  is  our  King. 

When  it  is  considered  that  the  King,  as  King  of  England, 
18 


2  74  The  Administration  of  Dependencies 

has  a  power  in  making  laws — the  power  of  executing  them — 
of  finally  determining  on  appeals — of  calling  upon  us  for 
supplies  in  times  of  war,  or  any  emergency — that  every  branch 
of  the  prerogative  binds  us,  as  the  subjects  are  bound  thereby 
in  England  —  and  that  all  our  intercourse  with  foreigners  is 
regulated  by  Parliament, — colonists  may  "surely"  be  ac- 
knowledged to  speak  with  truth,  and  precision,  in  answer  to  the 
"  elegantly  "  expressed  question — "  what  King//  is,"  &c.,  by 
saying  that  "  his  most  gracious  Majesty,  George  the  Third," 
is  the  King  of  England,  and  therefore,  "the  King,"  they 
profess  themselves  to  be  "  loyal  subjects  of." 

We  are  aware  of  the  objection,  that,  "  if  the  King  of  Eng- 
land is  therefore  King  of  the  Colonies,  they  are  subject  to  the 
general  legislative  authority  of  that  Kingdom. ' '  The  premises 
by  no  means  warrant  this  conclusion.  It  is  built  on  a  mere 
supposition,  that  the  Colonies  are  thereby  acknowledged  to  be 
within  the  Realm,  and  on  an  incantation  expected  to  be 
wrought  by  some  magic  force  in  those  words. 

To  be  subordinately  connected  with  England,  the  Colonies 
have  contracted.  To  be  subject  to  the  general  legislative 
authority  of  that  Kingdom,  they  never  contracted.  Such 
a  power  as  may  be  necessary  to  preserve  this  connection  she 
has. 

The  authority  of  the  Sovereign,  and  the  authority  of  con- 
trolling our  intercourse  with  foreign  nations,  form  that  power. 
Such  a  power  leaves  the  Colonies  free.  But  a  general  legis- 
lative power,  is  not  a  power  to  preserve  that  connection,  but 
to  distress  and  enslave  them.  If  the  first  power  cannot  sub- 
sist, without  the  last,  she  has  no  right  even  to  the  first,— the 
Colonies  were  deceived  in  their  contract — and  the  power  must 
be  unjust  and  illegal;  for  God  has  given  to  them  a  better  right 
to  preserve  their  liberty,  than  to  her  to  destroy  it.  In  other 
words,  supposing,  King,  Lords  and  Commons  acting  in  Parlia- 
ment, constitute  a  Sovereignty  over  the  Colonies,  is  that 
Sovereignty  constitutionally  absolute  or  limited  ?  That  States 
without  freedom,  should  by  principle  grow  out  of  a  free  State, 
is  as  impossible,  as  that  sparrows  should  be  produced  from  the 
eggs  of  an  eagle.     The  Sovereignty  over  the  Colonies,  must  be 


The  Federal  Empire  Defined,  1774    275 

limited.  .  .  .  To  argue  on  this  subject  from  other  in- 
stances of  Parliamentary  power,  is  shifting  the  ground. 

The  connection  of  the  Colonies  with  England  is  a  point  of 
an  unprecedented  and  delicate  nature.  It  can  be  compared 
to  no  other  case;  and  to  receive  a  just  determination,  it  must 
be  considered  with  reference  to  its  own  peculiar  circumstances. 
The  common  law  extends  to  colonies;  yet  Mr.  Justice  Black- 
stone  says:  "  Such  parts  of  the  law  as  are  neither  neces- 
sary or  convenient  for  them,  as  the  jurisdiction  of  the  spiritual 
courts,  etc.,  are  therefore  not  in  force."  If  even  the  common 
law  in  force  within  the  Realm  of  England  when  the  colonists 
quitted  it,  is  thus  abridged  by  the  peculiar  circumstances  of 
colonies,  at  least  equally  just  and  constitutional  is  it,  that 
the  power  of  making  new  laws  within  the  Realm  of  England 
should  be  abridged  with  respect  to  colonies,  by  those  peculiar 
circumstances. 

As  to  the  power  of  regulating  our  trade,  our  opinion  is,  that 
it  is  legally  vested  in  Parliament,  not  as  a  Supreme  Legislature 
over  these  Colonies,  but  as  the  Supreme  Legislature  and  full 
representative  of  the  parent  State  and  the  only  judge  between 
her  and  her  children  in  commercial  interests,  which  the  nature 
of  the  case,  in  the  progress  of  their  growth,  admitted.  It  has 
been  urged,  with  great  vehemence  against  us,  and  seems  to  be 
thought  their  fort  by  our  adversaries,  '*  that  a  power  of  regula- 
tion is  a  power  of  legislation,  and  a  power  of  legislation,  if 
constitutional,  must  be  universal  and  supreme  in  the  utmost: 
sense  of  the  words."  It  is  therefore  concluded,  that  the  colo- 
nists, by  acknowledging  the  power  of  regulation,  have  acknowl- 
edged every  other  power.  On  this  objection  we  observe,  that 
according  to  a  maxim  of  law,  "  it  is  deceitful  and  dangerous 
to  deal  in  general  propositions." 

It  seems  from  many  authorities,  as  if  almost  the  whole  power 
of  regulating  the  trade  of  England  was  originally  vested  in  the 
Crown.  One  restriction  appears  to  have  been,  that  no  duty 
could  be  imposed  without  the  consent  of  Parliament,  Trade 
was  little  regarded  by  our  warlike  ancestors.  As  commerce 
became  of  more  importance,  and  duties  and  severities  were 
judged  necessary  additions  to  its  first  simple  state,  Parliament 


276  The  Administration  of  Dependencies 

more  and  more  interfered.  The  Constitution  was  always  free, 
but  not  always  exactly  in  the  same  manner.  By  the  feudal 
law,  all  navigable  rivers  and  havens  were  computed  among 
the  regalia^  and  were  subject  to  the  Sovereign  of  the  State. 
And  in  England  it  has  always  been  held,  that  the  King  is 
lord  of  the  whole  shore,  and  particularly  is  guardian  of  the 
ports  and  havens,  which  are  the  inlets  and  gates  of  the  Realm; 
and  therefore,  so  early  as  the  reign  of  King  John,  we  find 
ships  seized  by  the  King's  officers,  for  putting  in  at  a  place 
that  was  not  a  legal  port.  These  legal  ports  were  undoubtedly 
at  first  assigned  by  the  Crown;  since  to  each  of  them  a  court  of 
portmote  is  incident,  the  jurisdiction  of  which  must  flow  from 
the  royal  authority.  The  erection  of  beacons,  lighthouses, 
and  sea-marks  is  also  a  branch  of  the  royal  prerogative.  The 
powers  of  establishing  public  marts,  regulating  of  weights  and 
measures,  and  the  giving  authority  to,  or  making  current, 
money,  the  medium  of  commerce,  belong  to  the  Crown.  By 
making  peace  or  war,  leagues  and  treaties,  the  King  may  open 
or  stop  trade  as  he  pleases.  The  admiralty  courts  are  grounded 
on  the  necessity  of  supporting  a  jurisdiction  so  extensive, 
though  opposite  to  the  usual  doctrines  of  the  common  law. 
The  laws  of  Oleron  were  made  by  Richard  the  First,  and  are 
still  used  in  those  courts.  In  the  "  Mare  Clausum  "  are  several 
regulations  made  by  Kings.  Time  forbids  a  more  exact  inquiry 
into  this  point:  but  such  it  is  apprehended,  will  on  inquiry  be 
found  to  have  been  the  power  of  the  Crown,  that  our  argument 
may  gain,  but  cannot  lose.  We  will  proceed  on  a  con- 
cession that  the  power  of  regulating  trade  is  vested  in 
Parliament. 

A  power  of  regulating  our  trade  involves  not  in  it  the  idea 
of  a  Supreme  Legislature  over  us.  The  first  is  a  power  of  a  pre- 
serving, "  protecting  "  nature.  The  last,  as  applied  to  Amer- 
ica, is  such  a  power  as  Mr.  Justice  Blackstone  describes  in 
these  words,  "whose  enormous  weight  spreads  horror  and 
destruction  on  all  inferior  movements." 

The  power  of  regulation  was  the  only  band  that  could  have 
held  us  together;  formed  on  one  of  those  "original  contracts," 
— which  only  can  be  a  foundation  of  just  authority.     Without 


The  Federal  Empire  Defined,  1774    277 

such  a  band,  our  general  commerce  with  foreign  nations  might 
have  been  injurious  and  destructive  to  her.  Reason  and  duty 
reject  such  a  license.  Thus  our  duty  resembles  that  of  children 
to  a  parent.  The  parent  has  a  power  over  them:  but  they 
have  rights,  which  the  parent  cannot  take  away. 

It  seems  as  if  the  power  of  regulation  might  not  inaptly  be 
compared  to  the  prerogative  of  making  peace,  war,  treaties, 
or  alliances,  whereby  "the  whole  nation  are  bound,  against 
their  consent  ":  and  yet  the  prerogative  by  no  means  implies 
a  Supreme  Legislature.  The  language  held  in  "  the  Commen- 
taries "  on  this  point  is  very  remarkable:  "With  regard  to 
foreign  concerns,  the  King  is  the  delegate  or  representative  of 
the  people;  and  in  him,  as  in  a  center,  all  the  rays  of  his 
people  are  united;  and  the  sovereign  power  quoad  hoc  is  vested 
in  his  person."  Will  any  Englishman  say  these  expressions 
are  descriptive  of  the  King's  authority  within  the  Realm  ? 
Is  the  sovereign  power  within  that  vested  in  his  person  ?  He 
is  styled  Sovereign  indeed.  "  His  Realm  is  declared  by  many 
Acts  of  Parliament  an  Empire,  and  his  crown  Imperial."  But 
do  these  splendid  appellations,  the  highest  known  in  Europe, 
signify  that  sovereign  power  is  vested  in  his  person  within  the 
Realm  ?  We  have  a  full  answer  in  the  Commentaries.  "  The 
meaning  of  the  Legislature,  when  it  uses  these  terms  '  Empire ' 
and  '  Imperial,'  and  applies  them  to  the  Realm  and  Crown  of 
England,  is  only  to  assert,  that  our  King  is  equally  sovereign 
and  independent  within  these  his  dominions;  and  owes  no 
kind  of  subjection  to  any  potentate  upon  earth." 

Thus  we  maintain  that  with  regard  to  foreign  affairs,  the  par- 
ent original  State  is  the  delegate  or  representative  of  the  entire 
dominions:  the  sovereign  power  quoad  hoc  is  vested  in  her. 
Her  acts  under  this  power  irrevocably  bind  the  whole  nation. 
But  yet  this  power  by  no  means  implies  a  Supreme  Legislature. 

The  exercise  of  this  power  by  statutes  was  absolutely  nec- 
essary: because  it  was,  and  could  only  be  lodged,  as  the  laws 
of  the  parent  State  stand,  in  the  Supreme  Legislature  of  that 
State,  consisting  of  King,  Lords,  and  Commons;  and  statutes 
are  the  modes  by  which  these  united  sentiments  and  resolu- 
tions are  expressed. 


278  The  Administration  of  Dependencies 

The  power  of  the  Imperial  State,  therefore,  according 
to  Dickinson's  final  opinion,  was: 

A  power  of  enforcing  the  observance  of  "  the  common 
law  "  in  the  Colonies,  "abridged  by  the  peculiar  circum- 
stances "  of  the  Colonies; 

A  power  exercised  by  the  Imperial  State  as  "the  only 
judge"  between  itself  and  its  dependencies  "which  the 
nature  of  the  case  admitted  "  ; 

A  power,  therefore,  which,  if  exercised  at  all  by  Parlia- 
ment, consisting  of  King,  Lords,  and  Commons,  was 
exercised  only  in  substitution  for  the  King,  so  that  Par- 
liament could  not  exceed  the  power  exercised  by  the 
King  by  virtue  of  his  "  prerogative  " — that  is,  by  virtue 
of  his  constitutional  right.  As  the  reason  why  the  British 
Constitution  vested  in  the  Crown  the  powers  enumerated 
by  Dickinson  was,  plainly,  so  that  they  might  be  exer- 
cised expertly,  and  not  submitted  to  the  decision  of  a 
large  non-expert  body,  the  proposition  that  the  powers 
of  Parliament  over  the  dependencies  were  measured  by 
the  powers  of  the  Crown,  was  essentially  a  proposition 
that  the  dependencies  were  entitled  to  a  central  expert 
government  and  administration ; 

A  power  exercised  by  the  whole  Central  Government 
of  the  Imperial  State,  and  ultimately  by  statutes  enacted 
by  Parliament — the  Imperial  State  being  "the  delegate 
or  representative  of  the  entire  dominions,"  and  "the 
exercise  of  this  power  by  statutes"  being  "absolutely 
necessary" ; 

A  power  "  such  as  may  be  necessary  to  preserve  the 
connection"  between  the  Imperial  State  and  its  depen- 
dencies; 

A  power,  therefore,  by  which  the  State  of  Great  Britain 
was,  under  some  circumstances,  authorized  to  bind  the  in- 
dividual inhabitants  of  the  Colonies  without  their  individ- 
ual consent  expressed  by  natural  persons  elected  by  them 
as  their  representatives,  because  the  Colonies,  as  political 


The  Federal  Empire  Defined,  1774    279 

persons,  were  so  related  to  the  State  of  Great  Britain,  that 
that  State,  as  a  political  person,  was  their  delegate  and 
representative  for  managing  the  common  concerns  of  the 
great  political  organism  composed  of  the  State  of  Great 
Britain  and  the  Colonies,  constituting  the  British  Empire, 
under  a  condition  that  the  power  should  be  exercised 
through  some  expert  instrumentality,  and  that  in  extent 
and  sphere  it  should  be  limited  by  the  necessity  growing 
out  of  the  common  interests  of  the  whole  organism. 

By  the  statement  of  Dickinson's  that  Great  Britain  was 
"the  delegate  or  representative  of  the  entire  dominions," 
in  whom  "the  sovereign  power"  for  the  purposes  of  the 
agency  was  "vested," — whose  "acts  under  this  power 
irrevocably  bind  the  whole  nation," — whose  power  was, 
nevertheless,  a  power  to  "judge"  between  itself  and  the 
Colonies  in  those  matters  in  respect  to  which  its  interests 
necessarily  conflicted  with  those  of  the  Colonies,  because 
it  was  "the  only  judge  which  the  nature  of  the  case 
admitted,"  the  Federal  Empire  may  be  said  to  have 
emerged.  The  instant  it  was  declared  that  Great  Britain, 
as  a  State,  was  "the  delegate  or  representative"  of  the 
Colonies,  the  Colonies  were  declared  to  be  Member-States 
of  the  British  Federal  Empire. 


CHAPTER  XVI 

AMERICA'S   ULTIMATUM,    1 774 

WHEN  the  Congress  met  at  Philadelphia  for  its  first 
session,  on  September  4,  1774,  the  sentiment  of 
the  delegates  was  unanimous  that  the  Colonies 
were  States,  and  that  they  were  in  a  relationship  of  vol- 
untary union  with  the  State  of  Great  Britain  under  an 
unwritten  Treaty  or  Compact  of  Union.  Concerning 
the  character  of  the  Union,  however,  there  was  a  de- 
cided difference  of  opinion.  Dickinson  refused  to  be- 
come a  delegate  until  it  should  appear  what  position  the 
Congress  would  take;  but,  residing,  as  he  did,  in  Phila- 
delphia, his  great  reputation  doubtless  gave  him  as  much 
influence  as  if  he  had  been  a  delegate.  John  Adams  and 
Dickinson  represented  the  extremes  of  sentiment. 

Adams  regarded  the  Union  as  a  Union  on  terms  of 
equality,  and  the  Compact  of  Union  as  a  mere  Treaty  of 
Alliance  and  Commerce  between  equal  and  independent 
States.  A  clear  expression  of  his  views  on  this  subject 
is  found  in  the  pamphlet  entitled  Novanglus  and  Massa- 
chusettensisy  which  was  a  reprint  of  letters  printed  in 
newspapers,  during  the  latter  part  of  1774  and  the  early 
part  of  1775,  written  by  Adams,  under  the  name  of 
Novanglus,  and  by  William  Leonard,  under  the  name  of 
Massachusettensis.  In  a  letter  of  March  6,  1775,  Adams 
said: 

Distinct  States  may  be  united  under  one  King.  And  those 
States  may  be  further  cemented  and  united  together  by  a 
treaty  of  commerce.     This  is  the  case.    We  have,  by  our  own 

280 


America's  Ultimatum,   1774  281 

express  consent,  contracted  to  observe  the  Navigation  Act, 
and  by  our  implied  consent,  by  long  usage  and  uninterrupted 
acquiescence,  have  submitted  to  the  other  Acts  of  Trade, 
however  grievous  some  of  them  may  be.  This  may  be  com- 
pared to  a  treaty  of  commerce,  by  which  these  distinct  States 
are  cemented  together  in  perpetual  league  and  amity.  And 
if  any  further  ratifications  of  this  pact  or  treaty  are  necessary, 
the  Colonies  would  readily  enter  into  them,  provided  their 
other  liberties  were  inviolate. 

In  this  view.  Acts  of  Parliament  w^ere  merely  proposi- 
tions to  change  the  terms  of  the  Treaty  or  Compact  of 
Alliance  and  Commerce,  which  were  of  no  effect  until  as- 
sented to  by  the  Houses  of  Representatives  of  the  re- 
spective Colonies,  representing  the  people  of  the  Colonies, 
when  they  became  amendments  to  the  Treaty  or  Com- 
pact. Such  a  Union  was  merely  temporary  and  inorganic. 
The  King  was  the  Chief  Executive  of  a  number  of  sepa- 
rate States,  exercising  inconsistent  functions  in  his 
various  ofificial  capacities.  The  Union  was  through  the 
King  as  a  natural  person,  not  through  the  King  in  his 
official  capacity.  One  man  was  simply  exercising  the 
functions  which  would  usually  be  committed  to  several 
men  on  account  of  the  inconsistency  between  the  func- 
tions so  exercised.  In  this  view,  any  State  of  the  Union 
had  the  right,  in  case  of  dissatisfaction,  to  withdraw  from 
the  partnership  or  voluntary  association  (or,  to  express  it 
technically  in  the  language  of  the  public  law,  to  secede 
from  the  Union),  and  there  was  no  British  Empire.  The 
advocates  of  this  view  were  anti-Imperialists. 

Dickinson,  on  the  other  hand,  starting  with  the  same 
proposition  that  the  Colonies  were  originally  States  (and 
hence  originally  independent  and  equal  with  the  State  of 
Great  Britain),  contended  that,  simultaneously  with  the 
origin  of  the  Colonies  as  States,  the  people  of  the  Colo- 
nies had  entered  into  a  compact  with  the  people  of  Great 
Britain,  evidenced  by  the  Charters  authenticated  by  the 


282  The  Administration  of  Dependencies 

signature  of  the  King,  that  the  Colonies,  though  States, 
should  be  and  remain  in  a  permanent  and  organic  Union 
of  subordination  to  the  State  of  Great  Britain  on  terms 
just  to  both-  parties.  In  this  view,  this  whole  original 
Treaty  or  Compact  of  Union  had  the  effect  to  form  the 
people  of  Great  Britain  and  the  people  of  the  Colonies 
into  a  single  political  organism  or  State,  composed  of 
Great  Britain,  as  the  Imperial  State,  and  of  the  Colonies, 
as  subordinate  Member-States,  and  called  the  British 
Federal  Empire.  The  Treaty  or  Compact  was  the  su- 
preme law,  or,  in  other  words,  the  Constitution  of  the 
Empire, — supreme  over  every  governmental  action  of  the 
States  of  the  Empire,  whether  legislative  or  executive, 
and  hence  supreme  over  Acts  of  Parliament.  In  this 
view,  no  State  of  the  Empire  had  any  right  to  secede 
from  the  Empire.  A  change  from  member-statehood  to 
independent  statehood  could  result  only  from  a  dissolu- 
tion and  dismemberment  of  the  State  known  as  the 
British  Federal  Empire.  The  advocates  of  this  theory 
were  Federal-Imperialists. 

JefTerson  and  Hamilton,  neither  of  whom  were  members 
of  the  Continental  Congress  at  its  first  session,  expressed 
views  in  pamphlets  which  placed  the  former  in  the  anti- 
Imperialist  and  the  latter  in  the  Federal-Imperialist  party, 
though  neither  took  an  extreme  view.  Jefferson,  in  his 
Summary  View  of  the  Rights  of  British  America,  while 
taking  generally  the  anti-Imperialist  view,  regarded  the 
King  as  "the  only  mediatory  power  between  the  States 
of  the  British  Empire." 

On  September  24,  it  was  voted  "that  the  Congress  do 
confine  themselves,  at  present,  to  the  consideration  of 
such  rights  as  have  been  infringed  by  Acts  of  the  British 
Parliament  since  the  year  1763."  This  was  a  declaration 
that  it  was  the  purpose  of  Congress  to  demand  only  a  res- 
toration of  the  Constitution  of  the  British  Federal  Em- 
pire as  it  existed  at  the  close  of  the  war  in  1763. 


America's  Ultimatum,  1774  283 

Having  thus  narrowed  the  issue,  the  Congress  pro- 
ceeded to  narrow  it  still  further  by  determining  the 
specific  Acts  of  Parliament,  the  repeal  of  which  they  re- 
garded as  absolutely  necessary  to  a  settlement  between 
the  Colonies  and  Great  Britain.  The  vote  on  this  sub- 
ject, which  was,  under  the  circumstances,  a  vote  concern- 
ing the  ultimatum  which  was  to  be  addressed  by  the 
Colonies  to  Great  Britain,  was  taken  on  October  5, 
on  that  day,  Congress  passed  the  following  resolution : 

Resolved:  That  the  Committee  appointed  to  prepare  an 
Address  to  his  Majesty  be  instructed  to  assure  his  Majesty 
that,  in  case  the  Colonies  shall  be  restored  to  the  state  they 
were  in  at  the  close  of  the  late  war,  by  abolishing  the  system 
of  laws  and  regulations  for  raising  a  revenue  in  America,  for 
extending  the  powers  of  Courts  of  Admiralty,  for  the  trial  of 
persons  beyond  sea  for  crimes  committed  in  America,  for 
affecting  the  Colony  of  Massachusetts  Bay,  and  for  altering 
the  government  and  extending  the  limits  of  Canada,  the  jeal- 
ousies which  have  been  occasioned  by  such  acts  and  regulations 
of  Parliament  would  be  removed  and  commerce  again  restored. 

In  the  Declaration  of  Rights  and  Grievances  of  Octo- 
ber 14,  the  terms  of  this  ultimatum  were  followed,  with 
the  addition  of  a  demand  for  a  discontinuance  of  the 
annual  statutes  which  Parliament  had  been  in  the  habit 
of  enacting,  providing  for  the  quartering  of  troops  in 
America  at  the  expense  of  the  Colonies. 

The  declaration  concerning  the  constitutional  relation- 
ship between  Great  Britain  and  the  Colonies  was  con- 
tained in  the  fourth,  fifth,  sixth,  seventh,  ninth,  and  tenth 
resolutions,  which  were  as  follows : 

4,  That  the  foundation  of  English  liberty  and  of  all  free 
government  is  a  right  in  the  people  to  participate  in  their 
legislative   council:    and   as  the    English   colonists    are   not 


284  The  Administration  of  Dependencies 

represented,  and  from  their  local  and  other  circumstances 
cannot  properly  be  represented  in  the  British  Parliament,  they 
are  entitled  to  a  free  and  exclusive  power  of  legislation  in  their 
several  Provincial  Legislatures,  where  their  right  of  repre- 
sentation can  alone  be  preserved,  in  all  cases  of  taxation  and 
internal  polity,  subject  only  to  the  negative  of  their  Sovereign,  in 
such  manner  as  has  been  heretofore  used  and  accustomed: 
But  from  the  necessity  of  the  case,  and  a  regard  to  the  mutual 
interests  of  both  countries,  we  cheerfully  consent  to  the  operation 
of  such  Acts  of  the  British  Parliament,  as  are  bona  fide  restrained 
to  the  regulation  of  our  external  commerce,  for  the  purpose  of 
securing  the  commercial  advantages  of  the  whole  Empire  to  the 
Mother  Country,  and  the  commercial  benefits  of  its  respective  mem- 
bers ;  excluding  every  idea  of  taxation,  internal  or  external, 
for  raising  a  revenue  on  the  subjects  in  America  without  their 
consent. 

5.  That  the  respective  Colonies  are  entitled  to  the  common 
law  of  England,  and  more  especially  to  the  great  and  ines- 
timable privilege  of  being  tried  by  their  peers  of  the  vicinage, 
according  to  the  course  of  that  law. 

6.  That  they  are  entitled  to  the  benefit  of  such  of  the 
English  statutes  as  existed  at  the  time  of  their  colonization; 
and  which  they  have,  by  experience,  respectively  found  to 
be  applicable  to  their  several  local  and  other  circumstances. 

7.  That  these,  his  Majesty's  Colonies,  are  likewise  entitled 
to  all  the  immunities  and  privileges  granted  and  confirmed  to 
them  by  royal  charters,  or  secured  by  their  several  codes  of 
Provincial  laws. 

9.  That  the  keeping  a  standing  army  in  these  Colonies  in 
times  of  peace,  without  the  consent  of  the  Legislature  of  that 
Colony  in  which  such  army  is  kept,  is  against  law. 

10.  That  it  is  indispensably  necessary  to  good  government, 
and  rendered  essential  by  the  English  Constitution,  that  the 
constituent  branches  of  the  Legislature  be  independent  of 
each  other;  that,  therefore,  the  exercise  of  legislative  power 
in  several  Colonies  by  a  Council  appointed,  during  pleasure, 
by  the  Crown,  is  unconstitutional,  dangerous  and  destructive 
to  the  freedom  of  American  legislation. 


America's  Ultimatum,  1774  285 

Of  these  resolutions,  the  fourth  and  sixth  were  passed 
by  less  than  a  unanimous  vote,  though  the  record  does 
not  show  the  exact  character  of  the  vote. 

The  declaration  concerning  the  rights  of  the  individual 
inhabitants  of  the  Colonies  against  the  British  Imperial 
Government  were  contained  in  the  first,  second,  third, 
and  eighth  resolutions,  all  of  which  were  adopted  by  a 
unanimous  vote,  and  which  were  as  follows : 

1.  That  they  are  entitled  to  life,  liberty  and  property:  and 
they  have  never  ceded  to  any  foreign  power  whatever,  a  right 
to  dispose  of  either  without  their  consent. 

2.  That  our  ancestors,  who  first  settled  these  Colonies,  were 
at  the  time  of  their  emigration  from  the  Mother  Country,  en- 
titled to  all  the  rights,  liberties  and  immunities  of  free  and 
natural-born  subjects  within  the  Realm  of  England. 

3.  That  by  such  emigration  they  by  no  means  forfeited,  sur- 
rendered or  lost  any  of  those  rights,  but  that  they  were  and  their 
descendants  now  are  entitled  to  the  exercise  and  enjoyment  of 
all  such  of  them,  as  their  local  and  other  circumstances  enable 
them  to  exercise  and  enjoy. 

8.  That  they  have  a  right  to  peaceably  assemble,  consider 
of  their  grievances,  and  petition  the  King;  and  that  all  pros- 
ecutions, prohibitory  proclamations,  and  commitments  for  the 
same,  are  illegal. 

It  was  declared  by  the  Congress,  in  a  subsequent  part 
of  the  Declaration  of  Rights,  that  these  rights  of  the 
Colonies  and  their  inhabitants  existed  "by  the  immuta- 
ble laws  of  nature,  the  principles  of  the  English  Consti- 
tution, and  the  several  charters  or  contracts." 

It  is  noticeable  that  in  this  Declaration,  the  principal 
ground  on  which  the  claims  of  the  Colonies  were  based 
was  "the  laws  of  nature."  While  "the  principles  of  the 
English  Constitution"  and  "the  several  charters  or  con- 
tracts "  were  relied  upon,  the  reliance  was  upon  them  only 


286  The  Administration  of  Dependencies 

so  far  as  they  were  not  inconsistent  with  the  principles  of 
justice  and  good  government. 

The  first  resolution,  by  necessary  implication,  con- 
tained a  claim  that  the  Colonies  were  Member-States  of 
a  Federal  Empire.  Great  Britain  was  described,  in  that 
resolution,  by  necessary  implication  as  a  "foreign  power" 
which  had  some  right  of  disposition  over  the  life,  liberty, 
and  •  property  of  the  inhabitants  of  the  Colonies,  but 
which  had  not  "a  right  to  dispose  of  either  without  their 
consent."  This  consent,  it  was  intimated,  could  only  be 
evidenced  by  some  "act  of  cession"  by  the  inhabitants  of 
the  Colonies,  or  by  the  Colonies,  to  Great  Britain,  as  a 
foreign  power.  This  resolution  was,  in  fact,  a  declaration 
that  Great  Britain,  as  the  Imperial  State  of  the  Federal 
Empire,  had  a  right  to  "dispose  of  "  the  life,  liberty,  and 
property  of  the  inhabitants  of  the  Colonies,  to  the  extent 
to  which  they  had  ceded  to  it  that  right. 

The  language  of  the  fourth  resolution,  it  will  be  no- 
ticed, was  wide  enough  to  include  both  theories  of  the  re- 
lationship between  Great  Britain  and  the  Colonies.  The 
fact  that  the  Colonies  "  cheerfully  consented  "  to  the  op- 
eration of  certain  Acts  of  Parliament  was  not  necessarily 
inconsistent  with  the  proposition  that  Parliament  had  a 
constitutional  right  to  pass  these  Acts,  though,  of  course, 
it  was  also  consistent  with  the  proposition  that  the  power 
of  Parliament  rested  wholly  on  the  assent  and  acquies- 
cence of  the  Colonies.  The  admission  that  the  consent 
was  given  ' '  from  the  necessity  of  the  case  and  a  regard  to 
the  mutual  interests  of  both  countries  "  was  very  nearly 
an  admission  that  Parliament  had  a  constitutional  right. 
A  "  consent  "  founded  on  "  the  necessity  of  the  case  "  is 
the  basis  of  all  constitutional  right  of  all  governors  over 
the  governed.  It  can  well  be  seen  that  the  resolution 
could  not  have  satisfied  either  the  anti-Imperialists,  who 
believed  that  the  relationship  was  one  of  temporary  inor- 
ganic alliance,  or  the  Federal-Imperialists,  who  believed 


America's  Ultimatum,  1774  287 

that  the  relationship  was  one  of  such  constitutional  de- 
pendency on  the  State  of  Great  Britain  that  it  might  ex- 
ercise powers  over  the  Colonies,  on  certain  conditions 
and  with  certain  limitations,  through  its  whole  Govern- 
ment or  any  designated  instrumentality  of  government 
adapted  for  the  purpose.  The  resolution  was  evidently 
the  result  of  a  compromise,  and  the  lack  of  unanimity 
was  evidently  caused  by  the  holding  out  of  some  of 
the  extremists. 

The  fifth  and  sixth  resolutions  are  interesting  as  show- 
ing that,  had  there  been  no  question  concerning  the 
power  of  Parliament  to  make  statutes  to  bind  the  Col- 
onies, there  would  never  have  been  any  doubt  but 
that  those  parts  of  the  common  law,  statutes,  and 
charters  of  Great  Britain  which  establish  great  general 
principles  of  government,  and  form  what  is  called  "  The 
British  Constitution,"  were  in  force  in  the  Colonies  in  so 
far  as  the  Colonies  had  **  by  experience,  respectively 
found  them  to  be  applicable  to  their  several  local  and 
other  circumstances." 

Dickinson  evidently  regarded  the  resolutions  as  show- 
ing a  clear  intention,  on  the  part  of  Congress,  to  seek  only 
the  restoration  of  the  Colonies  to  their  constitutional  re- 
lationship of  dependency  on  Great  Britain,  for,  on  the 
next  day  after  the  adoption  of  the  Declaration  (Satur- 
day, October  15),  he  was  elected  a  delegate  to  the 
Congress  by  the  Pennsylvania  Legislature,  and  on  Mon- 
day, October  17,  took  his  seat  in  the  Congress. 

The  Declaration  of  Rights  and  Grievances  made  by 
the  Congress  of  1774  was,  in  fact,  a  Declaration  of  De- 
pendence, in  answer  to  the  British  Declaration  of  Depend- 
ence of  1766.  Great  Britain  had  declared  that,  as  the 
Imperial  State,  it  had,  under  the  Constitution  of  the  Brit- 
ish Empire,  a  right  to  pass  laws  to  bind  the  dependencies 
in  all  cases  whatsoever.  America  had  declared  that  under 
the  Constitution  of  the  British  Empire,  Great  Britain, 


288  The  Administration  of  Dependencies 

as  the  Imperial  State,  had  the  right  to  pass  laws  to  bind 
the  dependencies  in  all  cases  where  "  a  proper  regard  to 
the  mutual  interests  "  made  it  "  necessary  "  that  supreme 
legislation  should  be  enacted,  and  that  it  exercised  this 
right,  as  a  "foreign  power,"  because  the  Colonies  had 
"ceded"  to  it  the  right. 

In  the  Address  to  the  People  of  Great  Britain,  adopted 
by  the  Congress  on  October  21,  it  was  made  perfectly 
clear  that  all  that  the  Colonies  demanded  was  a  restora- 
tion of  the  situation  as  it  existed  at  the  close  of  the  war 
in  1763, — that  is,  the  restoration  of  the  Federal  Empire. 
In  that  Address  they  said : 

Permit  us  to  be  as  free  as  yourselves,  and  we  shall  ever 
esteem  a  union  with  you  to  be  our  greatest  glory  and  our 
greatest  happiness,  we  shall  ever  be  ready  to  contribute  all  in 
our  power  to  the  welfare  of  the  Empire,  we  shall  consider  your 
enemies  as  our  enemies  and  your  interest  as  our  own. 

But  if  you  are  determined  that  your  Ministers  shall  wan- 
tonly sport  with  the  rights  of  mankind,  if  neither  the  voice  of 
justice,  the  dictates  of  the  law,  the  principles  of  the  Constitu- 
tion or  the  suggestions  of  humanity,  can  restrain  your  hands 
from  shedding  human  blood  in  such  an  impious  cause,  we 
must  then  tell  you  that  we  will  never  submit  to  be  hewers  of 
wood  or  drawers  of  water  for  any  Ministry  or  Nation  in  the 
world. 

Place  us  in  the  same  situation  as  we  were  at  the  close  of  the 
last  war  and  our  former  harmony  will  be  restored. 

In  the  Address  to  the  King  of  October  26,  which 
was  drafted  by  Dickinson,  Great  Britain  was  described 
as  "that  nation  in  whose  parental  guidance  on  all  impor- 
tant affairs  we  have  hitherto,  with  filial  reverence,  con- 
stantly trusted."  In  this  Address,  the  ultimatum  of  the 
Colonies  was  thus  formally  worded : 

We  ask  but  for  peace,  liberty  and  safety.  We  wish  not  a 
diminution  of  the  prerogative,  nor  do  we  solicit  the  grant  of 


America's  Ultimatum,  1774  289 

any  new  right  in  our  favor.  Your  royal  authority  and  our 
connection  with  Great  Britain  we  shall  always  carefully  and 
zealously  endeavor  to  support  and  maintain. 

Filled  with  these  sentiments  of  duty  to  your  Majesty  and  of 
affection  to  our  parent  State,  deeply  impressed  by  our  educa- 
tion and  strongly  confirmed  by  our  reason,  and  anxious  to 
evince  the  sincerity  of  these  dispositions,  we  present  this  peti- 
tion only  to  obtain  redress  of  grievances  and  relief  from  fears 
and  jealousies,  occasioned  by  the  system  of  statutes  and 
regulations  adopted  since  the  close  of  the  late  war  for  raising 
a  revenue  in  America,  extending  the  power  of  Courts  of  Ad- 
miralty and  Vice-Admiralty,  trying  persons  in  Great  Britain 
for  offences  alleged  to  be  committed  in  America,  affecting  the 
Province  of  Massachusetts  Bay,  and  altering  the  government 
and  extending  the  limits  of  Quebec;  by  the  abolition  of  which 
system  the  harmony  between  Great  Britain  and  these  Colonies, 
so  necessary  to  the  happiness  of  both,  and  so  ardently  desired 
by  the  latter,  and  the  usual  intercourses,  will  be  immediately 
restored.  In  the  magnanimity  and  justice  of  your  Majesty 
in  Parliament  we  confide  for  a  redress  of  our  other  griev- 
ances, trusting  that  when  the  causes  of  our  apprehensions  are 
removed,  our  future  conduct  will  prove  us  not  unworthy 
of  the  regard  we  have  been  accustomed,  in  our  happier  days, 
to  enjoy. 

The  American  ultimatum  was,  therefore,  essentially  a 
demand  for  the  restoration  of  the  Constitution  of  the 
British  Federal  Empire,  as  it  existed  at  the  close  of  the 
war  of  1763.  The  only  Acts  of  Parliament  the  repeal  of 
which  was  declared  to  be  an  absolute  prerequisite  had 
been  passed  since  1763,  and  each  of  them  violated,  in 
some  clear  and  unmistakable  way,  the  Constitution  of  the 
Empire  as  it  then  existed.  Those  Acts  concerning  which 
there  was  the  least  doubt  were  left  open  for  amicable  ad- 
justment, after  the  general  principles  of  the  relationship 
should  have  been  fixed  by  a  formal  restoration  of  that 
Constitution. 


290  The  Administration  of  Dependencies 

The  form  which  the  Congress  gave  to  the  instruments 
by  which  this  ultimatum  was  declared  was  exactly  con- 
sistent with  the  theory  which  the  Federal-Imperialist 
majority  held  concerning  the  political  relationship  be- 
tween the  Colonies  and  Great  Britain. 

In  order  to  appreciate  the  meaning  of  these  instru- 
ments, it  is  necessary  to  consider  the  form  which  the  ac- 
tion of  Congress  would  inevitably  have  taken  under  the 
two  theories  concerning  the  relationship. 

If  the  Colonies  were  States  in  a  temporary  inorganic 
Union  with  the  State  of  Great  Britain,  as  the  anti-Im- 
perialist party  in  America  contended,  so  that  Acts  of  Par- 
liament had  no  effect  as  legislation  in  the  Colonies  and 
were  merely  propositions  of  the  State  of  Great  Britain  to 
change  the  terms  of  the  Treaty  or  Compact  of  Union, 
the  ultimatum  of  the  Colonies,  in  case  the  State  of  Great 
Britain  insisted,  by  Acts  of  Parliament  or  otherwise,  on 
changing  the  terms  of  the  Treaty  or  Compact  of  Union 
against  the  wish  of  the  Colonies,  would  have  been  deliv- 
ered in  an  Address  by  the  people  of  the  Colonies  as- 
sembled to  the  people  of  the  State  of  Great  Britain.  The 
King,  in  such  a  case,  would  have  been  disqualified,  by 
conflict  of  interest,  from  acting  as  the  Chief  Executive  of 
either  the  State  of  Great  Britain  or  the  Colonies,  and 
could  have  acted  only  as  a  friendly  third  person,  or 
mediator.  He  would  have  had  no  "authority  "  over  the 
opposing  parties,  but  only  an  "influence  "  with  them.  In 
such  an  ultimatum,  the  Colonies  would  have  notified  the 
State  of  Great  Britain  that,  if  its  terms  were  not  complied 
with,  they  would  secede  from  the  Union. 

If  the  Colonies  were  States  in  permanent  organic  Union 
with  the  State  of  Great  Britain,  as  the  Federal-Imperi- 
alist party  in  America  contended,  so  that  they  all  to- 
gether constituted  a  single  political  organism,  that  is,  a 
State,  called  a  Federal  Empire,  under  a  permanent  un- 
written Constitution  conceived  of  as  emanating  from  all 


America's  Ultimatum,    1774  291 

the  people  of  the  Empire  assembled,  which  was  supreme 
throughout  the  whole  organism,  the  ultimatum  of  any 
Member-State  in  the  Empire,  against  the  Imperial  State 
or  against  another  Member-State,  for  committing  any  gov- 
ernmental act  inconsistent  with  the  Constitution  of  the 
Empire,  would  have  been  addressed  to  the  person  or  body 
of  persons  in  the  Empire  whose  function  it  was  to  interpret 
and  adjudicate  the  terms  of  the  unwritten  Constitution  of 
the  Empire,  and  to  cause  the  Constitution,  as  so  interpreted 
and  adjudicated,  to  be  executed  throughout  the  Empire. 
If  this  person  were  the  King,  the  ultimatum  of  the  Colonies 
would  have  been  delivered  to  him,  if  it  were  the  House 
of  Lords,  to  that  body,  if  it  were  the  House  of  Commons, 
to  that  body,  if  it  were  the  whole  Parliament,  consisting 
of  King,  Lords,  and  Commons  assembled,  to  that  body. 
The  person  or  body  of  persons  so  addressed  would  have 
been  petitioned  to  exercise  his  or  their  "power  "  or  "au- 
thority "  to  adjudicate  and  declare  the  Constitution  of 
the  Empire,  to  enjoin  and  prevent  the  execution  of  all 
acts  inconsistent  with  the  Constitution,  and  to  execute 
the  Constitution  by  aflfirmative  acts.  Such  an  ultima- 
tum would  virtually  have  been  a  suit  in  court,  and  it 
would  not  have  been  necessary  for  the  complaining 
party  to  state  what  it  would  do  if  its  complaint  were 
fairly  adjudicated  against  it,  since  it  would  have  gone 
without  saying  that  it  would  submit  to  such  an  ad- 
judication. If  the  officer  or  tribunal  designated  as  the 
proper  official  to  adjudicate  and  execute  the  Constitution 
refused  to  act  as  such  and  was  supported  in  its  refusal  by  the 
opposing  party,  the  Empire  would  be  ipso  facto  dissolved. 
The  Address  to  the  King  was  plainly  based  on  this  last: 
theory.  He  was  not  asked  to  use  his  influence  as  a 
friendly  third  person,  by  way  of  mediation,  but  he  was 
asked  to  exercise  power  and  authority  to  adjudicate,  de- 
clare, and  execute  the  unwritten  Constitution  of  the 
Federal  Empire,  as  the  sole  official  of  the  Empire  upon 


292  The  Administration  of  Dependencies 

whom  that  function  rested.  As  the  power  of  adjudica- 
tion, accompanied  by  the  power  of  execution,  is  exactly 
the  power  of  disposition,  the  King  was  addressed  as  the 
Disposer  of  the  affairs  of  the  Empire. 

The  King  was  implored  "as  the  loving  father  of  his 
whole  people,  connected  by  the  same  bonds  of  law,  loy- 
alty, faith  and  blood,  although  dwelling  in  various  coun- 
tries," not  to  "suffer  the  transcendent  relation  formed  by 
these  ties  to  be  further  violated."  He  was  petitioned  to 
"redress  the  grievances  "  of  the  Colonies,  by  using  his 
"royal  authority  and  interposition  "  for  the  "relief  "  of  the 
Colonies  against  a  "system  of  statutes  and  regulations  " 
of  the  British  Parliament  alleged  to  be  a  wrongful  action 
on  the  part  of  Great  Britain  toward  the  Colonies.  The 
Colonies  declared  that  they  "wished  not  a  diminution  of 
the  prerogative,"  nor  "solicited  the  grant  of  any  new 
right  in  their  favor,  "  and  that  "they  should  always  care- 
fully and  zealously  endeavor  to  support  and  maintain  the 
King's  "royal  authority  "  over  them  and  their  "connec- 
tion with  Great  Britain." 

An  "authority  "  of  the  King  to  "interpose  "  so  as  to 
prevent  the  execution  of  the  legislation  of  the  State  of 
Great  Britain  was  essentially  the  same  power  as  the 
King's  Chancellor  exercised  in  suits  between  private  per- 
sons when  he  enjoined  the  performance  of  a  threatened 
act  because  in  violation  of  a  contract  for  personal  services. 
The  State  of  Great  Britain  was  regarded  in  the  Address 
to  the  King  as  a  person  which  had  entered  into  an  un- 
written contract  with  the  Colonies,  as  persons,  to  perform 
services  for  them.  It  was  complained  of  as  a  party  de- 
fendant in  a  judicial  action  because  it  was  threatening  to 
insist  upon  performing  services  for  the  Colonies  which 
were  not  included  in  the  contract,  which  the  Colonies  did 
not  desire,  and  which  were  not  for  their  benefit.  The 
King  was  prayed  to  interpret  the  terms  of  the  contract, 
and,  on  its  being  determined  by  him  that  Great  Britain 


America's  Ultimatum,    1774  293 

had  violated  the  terms  of  the  contract,  to  enjoin  the 
further  performance  or  attempt  to  perform  the  services 
not  included  in  it.  This  unwritten  contract  was  described 
in  the  Address  as  "the  transcendent  relation  formed  by 
the  ties  of  law,  loyalty,  faith  and  blood,"  which  was  the 
supreme  law  governing  the  relations  of  the  States  of  the 
Empire  to  each  other. 

The  purpose  of  the  Address  to  the  People  of  Great 
Britain  was,  in  part,  to  urge  them  to  settle  the  matter 
out  of  court  and  thus  avoid  the  necessity  of  having  the 
matter  go  to  final  judgment,  and  in  part  to  notify  them 
that,  if  they  persisted  in  supporting  their  Parliament  in 
the  position  that  the  Empire  was  not  a  federal  organism 
and  thus  making  it  impossible  for  the  King  to  adjudicate 
and  execute  the  unwritten  Constitution  of  the  Empire, 
the  Colonies  would  regard  the  Empire  as  dissolved  by  the 
act  of  the  people  and  State  of  Great  Britain.  In  this  Ad- 
dress it  was  declared  that  the  statutes  complained  of  were 
violations  of  the  "rights  of  the  whole  Empire," — that  is, 
of  the  unwritten  Constitution  of  the  Federal  Empire. 
The  people  of  Great  Britain  were  declared  to  be  addressed 
as  "fellow-subjects  "  of  the  same  King, — that  is,  as  sub- 
ject to  the  adjudication  and  execution,  by  the  King  of 
Great  Britain,  as  ex  officio  the  Disposer  of  the  affairs  of  the 
Empire,  of  the  terms  of  the  Constitution  of  the  Empire. 
An  appeal  was  made  to  their  "justice  and  magnanimity  " 
to  compel  the  Parliament  to  repeal  the  statutes  which 
were  in  excess  of  the  constitutional  powers  of  the  State 
of  Great  Britain,  and  thus  remove  the  necessity  for  an 
adjudication  and  execution  of  the  Constitution  of  the 
Empire  by  the  King. 

The  ultimatum  of  America  therefore  was,  in  a  word, 
that  the  British  Empire  be  recognized,  by  the  State  of 
Great  Britain,  as  a  Federal  Empire. 


CHAPTER   XVII 

BRITISH   PROPOSITIONS,    1 775 

THE  decision  in  the  case  of  Campbell  v.  Hall,  ren- 
dered November  28,  1774,  after  four  arguments, 
by  the  Court  of  Kings  Bench,  presided  over  by 
Chief  Justice  Mansfield,  recognizing  as  it  did  that  the 
King  had  legislative  power  over  dependencies  arising  by 
conquest,  and  that  such  power  was  conditioned  and 
limited  so  that  he  could  make  no  laws  which  were  "con- 
trary to  fundamental  principles,  or  excepting  from  the 
laws  of  trade  or  authority  of  Parliament,  or  granting 
privileges  [to  inhabitants  of  the  Colonies]  exclusive  of 
his  other  subjects,"  gave  a  new  trend  to  thought  on  both 
sides  of  the  water,  and  particularly  in  America.  Thence- 
forward, though  the  Court  in  that  case  had  recognized 
Parliament  as  the  Supreme  Legislature  of  the  Empire, 
there  was  a  distinct  and  increasing  tendency  in  America 
to  regard  the  King — that  is,  the  King  in  Council — as  the 
Supreme  Head  of  the  Empire,  and  to  deny  to  Parliament 
all  power  in  the  Empire. 

The  exact  question  involved  in  that  case  was,  whether 
the  King,  after  having  granted,  by  Proclamation  in 
Council,  to  the  Island  of  Grenada,  in  the  West  Indies — 
one  of  the  countries  ceded  by  France  to  Great  Britain  by 
the  Treaty  of  Paris  of  February  4,  1763,  upon  the  close  of 
the  war — the  right  to  have  an  elected  House  of  Repre- 
sentatives as  a  part  of  its  General  Assembly,  could,  by  a 
subsequent  Proclamation  in  Council,  lay  a  tariff  dutj^  on 
articles  imported  into  the  Island.     The  Court  held  that 

294 


British  Propositions,  1775  295 

the  King  would  have  had  power  to  levy  the  tax,  had  he 
not  granted  Grenada  the  right  to  have  an  elective  branch 
of  its  Legislature,  but  that  by  such  grant  he  had  precluded 
himself  from  levying  the  tax. 

In  the  argument  on  behalf  of  the  Crown,  Attorney 
General  Thurlow  (afterwards  Lord  Chancellor)  said : 

My  reason  for  stating  that  dominion  and  property  were 
acquired  over  Grenada  by  conquest  was,  because  I  shall  infer 
that  the  Constitution  has  intrusted  the  King  with  the  disposition 
of  the  property,  and  with  the  ordering  of  that  dominion  conquered; 
subject  to  the  legislation  of  the  country  [/.  <?.,  of  Great 
Britain]. 

The  King,  both  in  conquests  and  colonies,  has  had  this  right. 
There  has  not  been  an  instance  in  luhich  the  King  has  not 
exercised  the  disposition  of  the  laws  and  property  of  the  conquered 
country. 

Lord  Mansfield,  delivering  the  opinion  of  the  Court, 
said : 

If  the  King  has  power  (and  when  I  say  the  King,  I  mean  in 
this  case  to  be  understood  "without  concurrence  of  Parlia- 
ment ")  to  make  new  laws  for  a  conquered  country,  this  being 
a  power  subordinate  to  his  own  authority  as  a  part  of  the  Su- 
preme Legislature  in  Parliament,  he  can  make  none  which 
are  contrary  to  fundamental  principles,  none  excepting  from 
the  laws  of  trade  or  authority  of  Parliament,  or  [granting] 
privileges  exclusive  of  his  other  subjects. 

The  present  proclamation  [of  July  20,  1764,  levying  the  tax] 
is  an  act  of  this  subordinate  legislative  power.  If  made  be- 
fore the  nth  of  October,  1763  [the  date  of  the  proclamation 
granting  to  Grenada  the  right  to  have  a  Legislative  Assembly], 
it  would  have  been  made  on  the  most  reasonable  and  equitable 
grounds;  putting  the  Island  of  Grenada  on  the  same  footing 
as  the  other  Islands.  .  .  .  The  only  question  which  re- 
mains then  is,  whether  the  King  had  power,  after  the  4th  of 
February,  1763,  of  himself,  to  impose  the  duty. 


296  The  Administration  of  Dependencies 

It  is  not  to  be  wondered  at  that  an  adjudged  case  in  point 
is  not  to  be  found;  no  dispute  ever  was  started  before  upon 
the  King's  legislative  right  over  a  conquest.  It  never  was  de- 
nied in  a  court  of  law  or  equity  in  Westminster  Hall,  never 
was  questioned  in  Parliament. 

Upon  full  consideration,  we  are  all  of  opinion  that  before 
the  20th  of  July,  1764,  the  King  had  precluded  himself  from 
an  exercise  of  the  legislative  authority  by  virtue  of  his  prerog- 
ative, which  he  had  before  over  the  Island  of  Grenada.    .    .    . 

We  therefore  think  that,  by  the  two  proclamations  [of  Oc- 
tober II,  1763,  and  March  26,  1764,  the  latter  inviting  settlers 
to  the  Island]  and  the  commission  to  Governor  Melville  [of 
April  29,  1764],  the  King  had  immediately  and  irrevocably 
granted  to  all  who  did  or  should  inhabit,  all  who  had  or  should 
have  property  in  the  Island  of  Grenada — in  general,  to  all 
whom  it  may  concern — that  the  subordinate  legislation  over 
the  Island  should  be  exercised  by  the  Assembly  and  the  Gov- 
ernor and  Council,  in  like  manner  as  in  the  other  Provinces 
under  the  King. 

And,  therefore,  though  the  right  of  the  King  to  have  levied 
taxes  on  a  conquered  country,  subject  to  him  in  right  of  his 
Crown,  was  good,  and  the  duty  reasonable,  equitable  and  ex- 
pedient, and  according  to  the  finding  of  the  verdict  paid  in 
the  Barbadoes  and  all  the  other  Leeward  Islands;  yet,  by  the 
inadvertency  of  the  King's  servants,  the  order  in  which  the 
several  instruments  passed  the  office  (for  the  patent  of  the  20th 
of  July,  for  raising  the  impost  stated,  should  have  been  first), 
the  order  is  inverted  and  the  last  we  think  contrary  to  and  a 
violation  of  the  first,  and  therefore  void. 

However  proper  soever  the  thing  may  be  respecting  the  ob- 
ject of  these  letters  patent,  it  can  only  now  be  done     . 
by  act  of  the  Assembly  of  the  Island,  or  by  the  Parliament  of 
Great  Britain. 

While  the  British  looked  upon  this  case  as  supporting 
the  claim  of  Parliament  over  the  Colonies,  the  Americans, 
on  the  other  hand,  disregarded  this  feature  of  it  (which 
was,  in  fact,  a  mere  dictum),  and  laid  stress  upon  the 


British  Propositions,  1775  297 

point  actually  decided,  namely,  that  the  King — that  is, 
the  King  in  Council — had  legislative  power  over  the  de- 
pendencies of  Great  Britain,  but  that  his  legislative  power 
was  conditioned  and  limited. 

As  Blackstone,  in  his  Commentaries,  had  regarded  the 
American  Colonies  as  conquests,  the  effect  of  this  de- 
cision, if  his  proposition  was  correct,  was  to  declare 
that  the  King  had  legislative  power  over  the  American 
Colonies.  Though  the  Americans  vigorously  denied 
Blackstone's  proposition,  they  seem  to  have  accepted  the 
statement  of  Attorney  General  Thurlow,  in  the  argument 
of  the  case,  that  the  power  of  the  King  was  the  same 
"  both  in  conquests  and  in  colonies." 

After  that  decision,  the  only  question  left,  as  the 
Americans  looked  at  it,  was  whether  the  King  or  the 
Parliament  was  the  Supreme  Head  of  the  Empire — that 
is,  whether  Parliament  had  no  power  over  the  Colonies 
or  whether  it  had  power  over  them  under  the  same  con- 
ditions and  limitations  as  the  King,  in  the  exercise  of 
which,  however,  it  was  supreme  over  the  King. 

If  the  Colonies  were  true  States,  the  only  bond  of  union 
between  them  and  the  State  of  Great  Britain  was  logically 
the  King,  since  the  King  was  the  representative  of  that 
State  in  its  dealings  with  foreign  States.  If  the  Colonies 
were  municipal  corporations,  Parliament  was  the  repre- 
sentative of  the  State  of  Great  Britain  in  dealing  with 
them,  and  its  powers  were  the  same  as  it  exercised  in  the 
Realm.  If  they  were  neither  true  States  nor  true  muni- 
cipal corporations,  the  question  arose  whether  they  most 
nearly  resembled  States  or  municipal  corporations.  The 
Colonies  claimed  that  they  so  nearly  resembled  States 
that  the  King  was  the  sole  representative  of  the  State 
of  Great  Britain  as  respected  them.  Some  persons  in 
the  Colonies  stopped  here,  and  denied  all  power  to  Par- 
liament; others  took  the  position  that,  while  the  King 
was  the  usual  and  proper  representative  of  the  State  of 


298  The  Administration  of  Dependencies 

Great  Britain  in  its  relations  with  the  Colonies,  the 
Parliament  was,  within  the  same  sphere  of  action  as 
the  King,  supreme  over  him  and  hence  over  the  Colonial 
Legislatures. 

The  difference  in  view  concerning  the  respective  powers 
of  the  King  and  Parliament  was  really  a  difference  in 
view  concerning  the  character  of  the  British  Empire.  If 
it  was  a  federal  organism,  the  power  of  both  the  King 
and  Parliament  over  the  Colonies  was  the  same  in  char- 
acter and  extent,  except  that  the  King  was  the  superior 
and  Parliament  the  supreme  governmental  agency  of  the 
Empire.  If  the  British  Empire  was  a  unitary  organism, 
the  power  of  Parliament  was  different  from  the  power  of 
the  King,  equally  in  the  Realm  and  in  the  Empire. 

Among  the  persons  in  Great  Britain  who,  in  the 
early  part  of  1775,  had  grasped  the  American  conception 
of  the  British  Empire  as  a  federal  organism,  was  Lord 
Chatham.  When,  therefore,  the  Houses  of  Parliament 
were,  during  the  last  days  of  January,  1775,  considering 
the  American  Papers  laid  before  them  by  the  Ministry  on 
January  20,  and  the  Ministry  was  attempting  to  procure 
the  adoption  of  an  Address  to  the  King,  declaring  the 
Colonies  in  a  state  of  rebellion,  Lord  Chatham  applied 
himself  to  the  preparation  of  a  Bill  which  should  embody 
the  principles  underlying  the  British  Empire  as  a  federal 
organism,  counselling  with  Franklin  concerning  the  de- 
tails, and  on  February  i,  1775,  introduced  his  Bill  in  the 
House  of  Lords. 

The  Bill  showed,  from  its  title,  that  it  was  based  on 
the  theory  that  the  British  Empire  was  a  federal  organism. 
It  was  entitled  "A  Bill  for  a  Provisional  Act  for  Settling 
the  Troubles  in  America  and  for  Asserting  the  Supreme 
Legislative  Authority  and  Superintending  Power  of  Great 
Britain  over  the  Colonies."  The  authority  and  power 
over  the  Colonies,  according  to  this  title,  was  vested  in 
the  State  of  Great   Britain,   from   which  it  necessarily 


British  Propositions,  1775  299 

follows  that  the  Colonies  were  related  to  the  State  of 
Great  Britain  as  States  and  that  the  powers  of  both  King 
and  Parliament  were  measured  by  the  powers  which  the 
State  of  Great  Britain  had,  under  the  contract  or  consti- 
tution existing  between  itself  and  the  Colonies  as  States. 
The  full  text  of  the  Bill  was  as  follows: 

Whereas,  by  an  Act,  6  Geo.  III.,  it  is  declared  that  Parlia- 
ment has  full  power  and  authority  to  make  laws  and  statutes 
to  bind  the  people  of  the  Colonies  in  all  cases  whatsoever: 
And  whereas  reiterated  complaints  and  most  dangerous  dis- 
orders have  grown,  touching  the  right  of  taxation  claimed  and 
exercised  over  America,  to  the  disturbance  of  peace  and  good 
order  there,  and  to  the  actual  interruption  of  the  due  inter- 
course from  Great  Britain  and  Ireland  to  the  Colonies;  deeply 
affecting  the  navigation,  trade  and  manufactures  of  this  King- 
dom, and  of  Ireland,  and  announcing  farther  an  interruption 
of  all  exports  from  the  said  Colonies  to  Great  Britain,  Ireland, 
and  the  British  islands  in  America:  Now,  for  the  prevention 
of  these  ruinous  mischiefs,  and  in  order  to  an  equitable,  hon- 
orable, and  lasting  settlement  of  claims  not  sufficiently  ascer- 
tained and  circumscribed ;  May  it  please  your  most  excellent 
Majesty  that  it  may  be  declared,  and  be  it  declared,  by  the 
King's  most  excellent  Majesty,  by  and  with  the  consent  of  the 
Lords  Spiritual  and  Temporal,  and  Commons,  in  this  present 
Parliament  assembled,  and  by  the  authority  of  the  same,  that 
the  Colonies  of  America  have  been,  are,  and  of  right  ought  to 
be  dependent  upon  the  Imperial  Crown  of  Great  Britain,  and 
subordinate  unto  the  British  Parliament;  and  that  the  King's 
most  excellent  Majesty,  by  and  with  the  advice  and  consent 
of  the  Lords  Spiritual  and  Temporal,  and  Commons,  in  Par- 
liament assembled,  had,  hath,  and  of  right  ought  to  have,  full 
power  and  authority  to  make  laws  and  statutes  of  sufficient 
force  and  validity  to  bind  the  people  of  the  British  Colonies 
in  America,  in  all  matters  touching  the  general  weal  of  the 
whole  dominion  of  the  Imperial  Crown  of  Great  Britain,  and 
beyond  the  competency  of  the  Local  Rei)resentative  of  a 
distinct  Colony,  and  most  especially  an  indubitable  and  in- 


300  The  Administration  of  Dependencies 

dispensable  right  to  make  and  ordain  laws  for  regulating 
navigation  and  trade  throughout  the  complicated  system  of 
British  commerce, — the  deep  policy  of  such  prudent  acts  up- 
holding the  guardian  navy  of  the  whole  British  Empire, — and 
that  all  subjects  in  the  Colonies  are  bound  in  duty  and  alle- 
giance duly  to  recognize  and  obey  (and  they  are  hereby 
required  so  to  do)  the  supreme  legislative  authority  and  super- 
intending power  of  the  Parliament  of  Great  Britain,  as  afore- 
said. 

And  whereas,  in  a  petition  from  America  to  his  Majesty,  it 
has  been  represented  that  the  keeping  a  standing  army  within 
any  of  the  Colonies,  in  time  of  peace,  without  consent  of  the 
respective  Provincial  Assembly  there,  is  against  law:  Be  it 
declared  by  the  King's  most  excellent  Majesty,  by  and  with 
the  advice  and  consent  of  the  Lords  Spiritual  and  Temporal, 
and  Commons,  in  this  present  Parliament  assembled,  that  the 
declaration  of  right,  at  the  ever-glorious  Revolution,  namely, 
"that  the  raising  and  keeping  a  standing  army  within  the 
Kingdom,  in  time  of  peace,  unless  it  be  by  consent  of  Parlia- 
ment, is  against  law,"  having  reference  only  to  the  consent  of 
the  Parliament  of  Great  Britain,  the  legal,  constitutional,  and 
hitherto  unquestioned  prerogative  of  the  Crown  to  send  any 
part  of  such  army,  so  lawfully  kept,  to  any  part  of  the  British 
dominions  and  possessions,  whether  in  America  or  elsewhere, 
as  his  Majesty,  in  the  due  care  of  his  subjects,  may  judge  nec- 
essary for  the  security  and  protection  of  the  same,  cannot  be 
rendered  dependent  upon  the  consent  of  a  Provincial  Assem- 
bly in  the  Colonies,  without  most  dangerous  innovation  and 
derogation  from  the  dignity  of  the  Imperial  Crown  of  Great 
Britain.  Nevertheless,  in  order  to  quiet  and  dispel  jealousies 
and  fears,  be  it  hereby  declared,  that  no  military  force,  how- 
ever raised  and  kept  according  to  law,  can  ever  be  em- 
ployed to  violate  and  destroy  the  just  rights  of  the  people. 

Moreover,  in  order  to  remove,  forever,  all  causes  of  per- 
nicious discords,  and  in  due  contemplation  of  the  vast  in- 
crease of  possessions  and  population  in  the  Colonies;  and 
having  at  heart  to  render  the  condition  of  so  great  a  body  of 
industrious  subjects  there,   more  and   more   happy,    by   the 


British  Propositions,  1775  301 

sacredness  of  property,  and  of  personal  liberty,  and  of  more 
extensive  and  lasting  utility  to  the  parent  Kingdom,  by  indis- 
soluble ties  of  mutual  affection,  confidence,  trade  and  recipro- 
cal benefits;  be  it  declared  and  enacted  by  the  King's  most 
excellent  Majesty,  by  and  with  the  advice  and  consent  of  the 
Lords  Spiritual  and  Temporal,  and  Commons,  in  this  present 
Parliament  assembled,  and  it  is  hereby  declared  and  enacted, 
by  the  authority  of  the  same,  that  no  tallage,  tax  or  other 
charge  for  his  Majesty's  revenue,  shall  be  commanded  or  levied 
from  British  freemen  in  America,  without  common  consent, 
by  act  of  Provincial  Assembly  there,  duly  convened  for  that 
purpose. 

And  it  is  hereby  further  declared  and  enacted  by  the 
King's  most  excellent  Majesty,  by  and  with  the  advice  and 
consent  of  the  Lords  Spiritual  and  Temporal,  and  Commons, 
in  this  present  Parliament  assembled,  and  by  the  authority  of 
the  same,  that  it  shall  and  may  be  lawful  for  delegates  from 
the  respective  Provinces,  lately  assembled  at  Philadelphia,  to 
meet  in  general  Congress  at  the  said  Philadelphia,  on  the 
ninth  day  of  May  next  ensuing,  [the  day  preceding  the 
day  on  which  the  Congress  was  to  reassemble,  it  having 
adjourned  on  October  26,  1774,  to  meet  again  at  Phila- 
delphia on  May  10,  1775],  in  order  then  and  there  to 
take  into  consideration  the  making  due  recognition  of  the 
supreme  legislative  authority  and  superintending  power  of 
Parliament  over  the  Colonies,  as  aforesaid;  and  moreover, 
may  it  please  your  most  excellent  Majesty,  that  the  said  dele- 
gates to  be  in  Congress  assembled  in  manner  aforesaid,  may 
be  required,  and  the  same  are  hereby  required,  by  the  King's 
Majesty  sitting  in  his  Parliament,  to  take  into  consideration, 
(over  and  above  the  usual  charge  for  support  of  civil  govern- 
ment in  the  respective  Colonies)  the  making  a  free  grant  to 
the  King,  his  heirs  and  successors,  of  a  certain  perpetual 
revenue,  subject  to  the  disposition  of  the  British  Parliament, 
to  be  by  them  appropriated,  as  they  in  their  wisdom  shall 
judge  fit,  to  the  alleviation  of  the  national  debt;  no  doubt 
being  had,  but  the  just,  free  aid  will  be  in  such  honorable 
proportion,  as  may  seem  meet  and  becoming  from  great  and 


302  The  Administration  of  Dependencies 

flourishing  Colonies  towards  a  parent  country,  laboring 
under  the  heaviest  burdens,  which  (in  no  inconsiderable  part) 
have  been  willingly  taken  upon  ourselves  and  posterity,  for 
the  defence,  extension  and  prosperity  of  the  Colonies. 

And  to  this  great  end,  be  it  hereby  further  declared  and 
enacted,  that  the  general  Congress  (to  meet  at  Philadelphia 
aforesaid)  shall  be,  and  is  hereby  authorized  and  empowered, 
(the  delegates  composing  the  same  being  first  sufficiently  fur- 
nished with  powers  from  their  respective  Provinces  for  this 
purpose)  to  adjust  and  fix  the  repartitions  and  quotas  of  the 
several  charges  to  be  borne  by  each  Province  respectively, 
towards  the  general- contributary  supply;  and  this  in  such  fair 
and  equitable  measure  as  may  best  suit  the  abilities  and  due 
convenience  of  all.  Provided  always,  that  the  powers  for  fixing 
the  said  quotas,  hereby  given  to  the  delegates  from  the  old 
Provinces  composing  the  Congress,  shall  not  extend  to  the 
new  Provinces  of  East  and  West  Florida,  Georgia,  Nova 
Scotia,  St.  John's,  and  Canada;  the  circumstances  and  abili- 
ties of  the  said  Provinces  being  reserved  for  the  wisdom  of 
Parliament  in  their  due  time.  And  in  order  to  afford  neces- 
sary time  for  mature  deliberation  in  America,  be  it  hereby 
declared  that  the  provisions  for  ascertaining  and  fixing  the 
exercise  of  the  right  of  taxation  in  the  Colonies,  as  agreed  and 
expressed  by  this  present  Act,  shall  not  be  in  force,  or  have 
any  operation,  until  the  delegates  to  be  in  Congress  assembled, 
sufficiently  authorized  and  empowered  by  their  respective 
Provinces  to  this  end,  shall,  as  an  indispensable  condition, 
have  duly  recognized  the  supreme  legislative  authority  and 
superintending  power  of  the  Parliament  of  Great  Britain  over 
the  Colonies  as  aforesaid.  Always  understood,  that  a  free 
grant  of  an  aid,  as  hereinbefore  required  and  expected  from 
the  Colonies,  is  not  to  be  considered  as  a  condition  of  redress, 
but  as  a  just  testimony  of  their  affection. 

And  whereas  divers  Acts  of  Parliament  have  been  humbly 
represented,  in  a  petition  to  his  Majesty  from  America,  to  have 
been  found  grievous,  in  whole  or  in  part,  to  the  subjects  of 
the  Colonies,  be  it  hereby  declared,  by  the  King's  most  excel- 
lent Majesty,  by  and  with  the  advice  and  consent  of  the  Lords 


British  Propositions,  1775  303 

Spiritual  and  Temporal,  and  Commons,  in  this  present  Parlia- 
ment assembled,  and  by  the  authority  of  the  same,  that  the 
powers  of  Admiralty  and  Vice-Admiralty  Courts  in  America 
shall  be  restrained  within  their  ancient  limits,  and  the  trial  by 
jury,  in  all  civil  cases,  where  the  same  may  have  been  abol- 
ished, restored;  and  that  no  subject  in  America  shall,  in 
capital  cases,  be  liable  to  be  indicted  and  tried  for  the  same, 
in  anyplace  out  of  the  Province  wherein  such  offence  shall  be 
alleged  to  have  been  committed;  nor  be  deprived  of  a  trial 
by  his  peers  of  the  vicinage;  nor  shall  it  be  lawful  to  send 
persons  indicted  for  murder,  in  any  Province  of  America,  to 
another  Colony,  or  to  Great  Britain,  for  trial.  And  it  is  hereby 
declared  and  enacted,  by  the  authority  aforesaid,  that  all  and 
every  the  same  Acts,  or  so  much  thereof  as  are  represented 
to  have  been  found  grievous,  namely,  the  several  Acts  of  4 
Geo.  III.  ch.  15  [the  Tariff  Act  of  1764],  and  ch.  34  [the 
Colonial  Bills  of  Credit  Act  of  1764],  5  Geo.  III.  ch.  25  [the 
Post  Ofifice  Act  of  1765],  6  Geo.  III.  ch.  52  [the  Tariff  Act 
of  1766],  7  Geo.  III.  ch.  41  [the  Commissioners  of  Customs 
Act  of  1767]  and  ch.  46  [the  Tariff  Act  of  1767],  8  Geo.  III. 
ch.  22  [the  Vice-Admiralty  Court  Act  of  1768],  12  Geo.  III. 
ch.  24  [the  Trial  for  Treason  Act  of  1772],  with  the  three 
Acts,  for  Stopping  the  Port  and  Blocking  up  the  Harbor  of 
Boston,  for  Altering  the  Charter  and  Government  of  Massa- 
chusetts Bay,  and  that  entitled  "An  Act  for  the  Better  Ad- 
ministration of  Justice,  «&c. ;"  also  the  Act  for  Regulating  the 
Government  of  Quebec;  and  the  Act,  passed  in  the  same 
session,  relating  to  the  Quarters  of  Soldiers — shall  be,  and 
are,  hereby  suspended,  and  not  to  have  effect  or  execution, 
from  the  date  of  this  Act.  And  be  it  moreover  hereby 
declared  and  enacted  by  the  authority  aforesaid,  that  all 
and  every  the  before-recited  Acts,  or  the  parts  thereof  com- 
plained of,  shall  be,  and  are,  in  virtue  of  this  present  Act, 
finally  repealed  and  annulled  from  the  day  that  the  due 
recognition  of  the  supreme  legislative  authority  and  super- 
intending power  of  Parliament  over  the  Colonies  shall  have 
been  made  on  the  part  of  the  said  Colonies. 

And  for  the  better  securing  due  and  impartial  administra- 


304  The  Administration  of  Dependencies 

tion  of  justice  in  the  Colonies,  be  it  declared  and  enacted,  by 
the  King's  most  excellent  Majesty,  by  and  with  the  advice 
and  consent  of  the  Lords  Spiritual  and  Temporal,  and  Com- 
mons, in  this  present  Parliament  assembled,  that  his  Majesty's 
judges  in  the  courts  of  law  in  the  Colonies  in  America,  to  be 
appointed  with  salaries  by  the  Crown,  shall  hold  their  offices 
and  salaries,  as  his  Majesty's  judges  in  England,  quamdiu  se 
bene  gesserint.  And  it  is  hereby  farther  declared  by  the 
authority  aforesaid,  that  the  Colonies  in  America  are  justly 
entitled  to  the  privileges,  franchises,  and  immunities  granted 
by  the  several  charters  or  constitutions,  which  ought  not  to  be 
invaded  or  resumed,  unless  for  misuse,  or  some  legal  ground 
of  forfeiture.  So  shall  true  reconcilement  avert  impending 
calamities,  and  this  most  solemn  national  accord  between 
Great  Britain  and  her  Colonies  stand  an  everlasting  monu- 
ment, of  clemency  and  magnanimity  in  the  benignant  Father 
of. his  People;  of  wisdom  and  moderation  in  this  great  nation, 
famed  for  humanity  as  for  valor;  and  of  fidelity  and  grateful 
affection  from  brave  and  loyal  Colonies  to  their  parent  King- 
dom, which  will  ever  protect  and  cherish  them. 

In  the  account  given  in  the  Parliamentary  History  of 
the  proceedings  in  the  House  of  Lords  of  February  i,  it 
is  said : 

The  Earl  of  Chatham  rose.  His  Lordship  began  with  re- 
minding the  House,  that  the  last  time  he  had  the  honor  of 
imparting  his  sentiments  to  them,  he  had  informed  them,  that 
with  their  indulgence,  he  would  submit  certain  propositions  to 
their  consideration,  as  a  basis  for  averting  the  dangers  which 
now  threatened  the  British  Empire;  and  that  in  performance 
of  his  promise,  he  had  sketched  the  outlines  of  a  Bill,  which 
he  hoped  would  meet  with  the  approbation  of  every  side  of 
the  House.  He  proceeded  to  state  the  urgent  necessity  of 
such  a  plan,  as,  perhaps,  a  period  of  a  few  hours  might  for- 
ever defeat  the  possibility  of  any  such  conciliatory  inter- 
vention. He  represented  Great  Britain  and  America  as 
drawn  up  in  martial  array,  waiting  for  the  signal  to  engage  in 


British  Propositions,  1775  305 

a  contest,  in  which  it  was  little  matter  for  whom  victory  de- 
clared, as  ruin  and  destruction  must  be  the  inevitable  conse- 
quence to  both  parties.  He  wished,  from  a  principle  of  duty 
and  affection,  to  act  the  part  of  a  mediator.  He  said,  how- 
ever, that  no  regard  for  popularity,  no  predilection  for  his 
country,  not  the  high  esteem  he  entertained  for  America  on 
one  hand,  nor  the  unalterable  steady  regard  he  entertained  for 
the  dignity  of  Great  Britain  on  the  other,  should  at  all  influ- 
ence his  conduct;  for  though  he  loved  the  Americans,  as  men 
prizing  and  setting  the  just  value  on  that  inestimable  blessing. 
Liberty;  yet,  if  he  could  once  bring  himself  to  be  persuaded 
that  they  entertained  the  most  distant  intentions  of  throwing 
off  the  legislative  supremacy  and  the  great  constitutional 
superintending  power  and  control  of  the  British  Legislature, 
he  should  be  the  very  person  himself  who  would  be  the  first 
and  most  zealous  mover  for  securing  and  enforcing  the  power 
by  every  possible  exertion  this  country  was  capable  of  making. 
He  recurred  to  his  former  arguments  on  the  great  constitu- 
tional question  of  taxation  and  representation ;  insisted  they 
were  inseparable,  and  planted  so  deeply  in  the  vital  principles 
of  the  Constitution,  as  never  to  be  torn  up,  without  destroying 
and  pulling  asunder  every  band  of  legal  government  and  good 
faith,  which  formed  the  cement  that  united  its  several  con- 
stituent parts  together.  He  entreated  the  assistance  of  the 
House  to  digest  the  crude  materials  which  he  presumed  to 
now  lay  before  it,  and  bring  it  and  reduce  it  to  that  form 
which  was  suited  to  the  dignity  and  importance  of  the  subject, 
and  to  the  great  ends  to  which  it  was  ultimately  directed. 
He  called  on  them  to  exercise  their  candor  on  the  present 
occasion,  and  deprecated  the  effects  of  party  or  prejudice,  of 
factious  spleen,  or  a  blind  predilection.  He  avowed  himself  to 
be  actuated  by  no  narrow  principle,  or  personal  consideration 
whatever;  for  though  the  present  Bill  might  be  looked  on  as  a 
Bill  of  Concession,  it  was  impossible  but  to  confess  at  the  same 
time  that  it  was  a  Bill  of  Assertion. 

The  Bill  was  read  the  first  time,  and  a  motion  to  lay 
it  on  the  table  was  made.    The  Earl  of  Sandwich,  for  the 


3o6  The  Administration  of  Dependencies 

Government,  moved  an  amendment,  "  that  the  said  Bill 
be  rejected."  The  Earl  of  Gower,  speaking  in  favor  of 
its  rejection,  said  "  that  it  fell  in  with  the  ideas  of 
America  in  almost  every  particular." 

The  Bill  was  debated  at  some  length.  Towards  the 
close  of  the  debate,  the  Earl  of  Chatham,  in  reply  to  the 
opponents  of  the  Bill,  said : 

The  indecent  attempt  to  stifle  this  measure  in  embryo  may 
promise  consequences  the  very  reverse  of  what  I  am  certain 
will  be  the  case  if  the  Bill  is  admitted.  The  friends  of  the 
present  amendment  may  flatter  themselves  that  the  contents 
of  the  Bill  will  sink  into  silence  and  be  forgotten,  but  I  believe 
they  will  find  the  contrary.  This  Bill,  though  rejected  here, 
will  make  its  way  to  the  public,  to  the  nation,  to  the  remotest 
wilds  of  America ;  it  will  in  such  a  course,  undergo  a  deal  of 
cool  observation  and  investigation  ;  and  whatever  its  merits 
or  demerits  may  be,  it  will  stand  or  fall  by  them  alone.  It 
will,  I  trust,  remain  a  monument  of  my  poor  endeavors  to 
serve  my  country  ;  and,  however  faulty  or  defective,  will  at 
least  manifest  how  zealous  I  have  been  to  avert  those  impend- 
ing storms  which  seem  ready  to  burst  on  it,  and  forever  over- 
whelm it  in  ruin. 

In  spite  of  Lord  Chatham's  protest,  the  resolution  for 
rejection  was  adopted  by  a  vote  of  6i  to  32. 

An  examination  of  Lord  Chatham's  Bill  shows  that  it 
was  carefully  framed  as  an  answer  to  the  American  ulti- 
matum. Every  point  made  by  the  Americans  was  met. 
Where  it  seemed  to  him  compatible  with  just  principles, 
he  yielded  the  point ;  where  it  seemed  to  him  that  the 
Americans  had  asked  more  than  was  just,  he  advanced  a 
counter-proposition,  yielding  all  he  thought  proper. 

The  claim  of  right  to  tax  the  dependencies,  he  yielded, 
so  far  as  the  American  Colonies  were  concerned,  reserving 
to  Parliament  the  determination  of  its  rights  in  this  re- 
spect with  regard  to  the  other  dependencies.  He  thus 
placed  the  American  Colonies  in  a  class  by  themselves, 


British  Propositions,  1775  z^7 

as  entitled  to  a  special  regime  by  reason  of  the  fact  that 
they  had  elective  Legislatures. 

By  the  Bill,  every  Act  of  the  British  Parliament  which 
Congress,  in  its  Declaration,  had  named  as  a  grievance 
was  to  be  repealed.  On  the  question  of  quartering  troops 
on  the  Colonies,  he  yielded  all  that  was  really  necessary 
by  declaring  that  no  military  force  should  ever  be  em- 
ployed to  violate  or  destroy  the  just  rights  of  the  people. 

In  the  most  important  particular,  namely,  the  basis  on 
which  the  power  of  Parliament  rested,  the  resolutions  of 
Congress  and  Lord  Chatham's  Bill,  though  apparently  at 
variance,  were  really  very  close  together,  as  will  appear 
by  a  comparison  of  the  one  with  the  other. 

Congress  had,  by  its  resolution,  practically  based  the 
power  of  Parliament  over  the  Colonies,  as  has  before 
been  noticed,  on  the  necessity  of  the  case,  since  "con- 
sent"  given  to  an  act  "from  necessity  of  the  case"  is 
simply  a  yielding  to  the  necessity.  The  rightfulness  of 
the  act  in  such  a  case  is  determined  by  the  necessity 
for  it,  and  not  by  the  consent  given.  Granted  that  the 
extent  of  the  power  of  Parliament  in  the  Colonies  was 
to  be  determined  "by  the  necessity  of  the  case,"  Lord 
Chatham's  description  of  the  power  of  Parliament  was 
unexceptionable  when  he  called  it  a  power  "to  make 
laws  and  statutes  of  sufficient  force  and  validity  to  bind 
the  people  of  the  British  Colonies  in  America  in  all 
matters  touching  the  general  weal  of  the  whole  dominion 
of  the  Imperial  Crown  of  Great  Britain,  and  beyond  the 
competency  of  the  Local  Representative,  [/.  e.,  the  Local 
Government],  of  a  distinct  Colony," — especially  when  he 
further  qualified  the  power  by  describing  it  "as  the 
supreme  legislative  authority  and  superintending  power. '  *' 
Superintendence  necessarily  implied  that  the  action  of 
Parliament  should  be  based  upon  "the  necessity  of  the 
case,"  to  be  determined  expertly  in  each  particular  case 
as  it  arose. 


3o8  The  Administration  of  Dependencies 

The  Bill  showed  that  Lord  Chatham  had  advanced  in 
thought  far  beyond  the  position  he  had  taken  during  the 
•debates  on  the  Stamp  Act,  and  that  the  American  con- 
ception, worked  out  by  Dickinson,  of  the  British  Empire 
as  a  federal  organism,  of  which  Great  Britain,  as  the  Im- 
perial State,  was  the  Central  Government,  and  the  Amer- 
ican Colonies,  Member-States,  had  been  accepted  by  him. 
Only  as  influenced  by  this  conception  could  he  have  de- 
clared the  power  of  Parliament  to  be  "a  supreme  legis- 
lative authority  and  superintending  power" — that  is,  a 
superintending  power  accompanied  by  a  supreme  legis- 
lative authority  sufficient  to  effectuate  it.  In  making 
this  declaration,  he  had  to  break  with  the  Declaratory 
Act  of  1766,  and  with  the  dictum  of  the  highest  court  of 
England,  presided  over  by  Lord  Mansfield,  a  Chief  Jus- 
tice of  exceptional  ability. 

In  recognizing  the  Congress  of  the  Colonies  as  a  body 
competent  to  bind  them,  the  Bill  recognized  the  right  of 
dependencies  to  be  united  or  federated  in  any  way  that 
the  common  interests  of  any  group  might  dictate. 

In  recognizing  the  right  of  dependencies  which  were 
so  far  advanced  in  density  of  population  and  in  civiliza- 
tion as  to  be  able  to  manage  their  local  affairs  through  an 
elected  legislature,  to  tax  themselves  for  local  purposes, 
and  to  determine  the  amount  of  their  contribution  for 
Imperial  purposes  after  advising  with  the  Imperial  au- 
thorities, and  in  insisting  upon  the  right  of  the  Imperial 
State  to  determine  the  amounts  of  Imperial  and  local 
taxation  in  dependencies  not  advanced  to  the  stage  of 
having  an  elected  legislature,  the  Bill  preserved  the  re- 
spective principles  for  which  the  Americans  on  the  one 
side  and  the  British  on  the  other  were  contending,  so  far  as 
each  principle  could  be  preserved,  consistently  with  the 
interests  of  the  Empire. 

The  provisions  regarding  the  security  of  charter  rights 
and  the  separation   of  the  Imperial  Judiciary  from  the 


British  Propositions,  1775  309 

Colonial  Judiciary  and  the  responsibility  of  the  Colonial 
Judiciary  to  the  people  of  the  Colonies,  were  corollaries 
from  the  proposition  that  the  power  of  Parliament,  as 
the  Imperial  Parliament,  was  a  superintending  power, 
different  from  that  exercised  by  it  as  the  Local  Legis- 
lature of  Great  Britain,  and  different  from  that  exercised 
by  the  Local  Legislatures  of  the  Colonies. 

In  less  than  a  week  after  Lord  Chatham's  Bill  was  re- 
jected— on  February  7,  1775 — both  Houses  united  in  an 
Address  to  the  King,  procured  by  the  management  of 
Lord  North  and  his  Ministry,  which  was  virtually  a 
permission  to  the  King  to  make  a  declaration  of  civil 
war.     In  this  Address  they  said : 

We  find  that  a  part  of  your  Majesty's  subjects  in  the  Pro- 
vince of  Massachusetts  Bay  have  proceeded  so  far  to  resist 
the  authority  of  the  Supreme  Legislature,  that  a  rebellion  at 
this  time  actually  exists  within  the  said  Province;  and  we  see 
with  the  utmost  concern  that  they  have  been  countenanced 
and  encouraged  by  unlawful  combinations  and  engagements 
entered  into  by  your  Majesty's  subjects  in  several  of  the  other 
Colonies.  .  .  .  We  can  never  so  far  desert  the  trust  im- 
posed on  us  as  to  relinquish  any  part  of  the  sovereign  authority 
over  all  your  Majesty's  dominions,  which  by  law  is  vested  in 
your  Majesty  and  the  two  Houses  of  Parliament, 

We  ever  have  been,  and  always  sTiall  be  ready  to  pay  atten- 
tion and  regard  to  any  real  grieyance  of  any  of  your  Majesty's 
subjects  which  shall,  in  a  constitutional  manner,  be  laid  before 
us;  and  whenever  any  of  the  Colonies  shall  make  a  proper 
application  to  us,  we  shall  be  ready  to  afford  them  every  just 
and  reasonable  indulgence.  At  the  same  time,  we  consider  it 
our  indispensable  duty,  humbly  to  beseech  your  Majesty  that 
you  will  take  the  most  effectual  measures  to  enforce  due  obe- 
dience to  the  laws  and  authority  of  the  Supreme  Legislature; 
and  we  beg  leave  in  the  most  solemn  manner  to  assure  your 
Majesty  that  it  is  our  fixed  resolution,  at  the  hazard  of  our 
lives  and   properties,   to  stand  by  your  Majesty,  against  all 


3IO  The  Administration  of  Dependencies 

rebellious  attempts,  in  the  maintenance  of  the  just  rights  of 
your  Majesty  and  the  two  Houses  of  Parliament, 

The  dissenting  members  of  the  House  of  Lords,  eigh- 
teen in  number,  united  in  a  written  protest  against  this 
Address,  in  which  they  declared  that  it  "amounted  to  a 
declaration  of  war"  against  the  Colonies. 

On  February  27,  1775,  the  House  of  Commons,  in 
Committee  of  the  Whole,  adopted  a  report  dictated  by 
Lord  North,  in  behalf  of  the  Ministry,  making  a  pro- 
position to  the  American  Colonies.     The  report  read : 

That  it  is  the  opinion  of  this  Committee,  that  when  the 
General  Council  and  Assembly,  or  General  Court,  of  any  of 
his  Majesty's  Provinces  or  Colonies  in  America,  shall  propose 
to  make  provision  according  to  the  condition,  circumstance, 
or  situation  of  such  Province  or  Colony,  for  contributing  their 
proportion  of  the  common  defence  (such  proportion  to  be 
raised  under  the  authority  of  the  General  Court  or  General 
Assembly  of  such  Province  or  Colony,  and  disposable  by  Par- 
liament) and  shall  engage  to  make  provision  for  the  support  of 
the  civil  government  and  the  administration  of  justice  in  such 
Province  or  Colony,  it  will  be  proper,  if  such  proposal  shall  be 
approved  by  his  Majesty  and  the  two  Houses  of  Parliament, 
and  for  so  long  as  such  provision  shall  be  made  accordingly, 
to  forbear,  in  respect  of  such  Province  or  Colony,  to  lay  any 
duty,  tax  or  assessment,  except  only  such  duties  as  it  may  be 
expedient  to  continue  to  levy  or  impose  for  the  regulation  of 
commerce  ;  the  net  produce  of  the  duties  last  mentioned  tobe 
carried  to  the  account  of  such  Province  or  Colony  respectively. 

This  proposition  was  objectionable  for  many  reasons. 
It  was  merely  tentative  and  bound  Great  Britain  to 
nothing;  it  denied  the  right  of  the  dependencies  of  the 
British  Empire  to  be  federated  or  united  in  such  a  way  as 
the  interests  of  a  particular  group  might  require;  and  it 
was  based  on  the  theory  that  Great  Britain,  as  the  Im- 
perial State,  had  an  unconditional  and  unlimited  power 


British  Propositions,  1775  311 

of  legislation  in  the  dependencies,  which  it  might  sus- 
pend temporarily  in  return  for  a  consideration  which  it 
deemed  adequate. 

Burke  perceived  the  futility  of  Lord  North's  Proposals, 
and  while  they  were  in  process  of  being  transmitted  to 
America,  introduced  in  the  House  of  Commons,  on  March 
22,  1775,  his  Resolutions  for  Conciliation  with  the 
Colonies.  These  resolutions  had,  for  their  sole  object, 
the  restoration  of  the  Constitution  of  the  Empire,  as 
it  existed  at  the  close  of  the  war  in  1763.  They 
declared  the  right  of  the  American  Colonies  to  tax 
themselves,  the  expectation  being  expressed  that  they 
would  grant  "  subsidies  and  public  aids  for  his  Majes- 
ty's service,  according  to  their  abilities,"  because  "  it 
has  been  found  by  experience  that  the  manner  of 
granting  the  said  supplies  and  aids  by  those  General  As- 
semblies has  been  more  agreeable  to  the  inhabitants  of 
the  said  Colonies,  and  more  beneficial  and  conducive  to 
the  public  service  than  the  mode  of  giving  and  granting 
aids  and  subsidies  in  Parliament,  to  be  raised  and  paid  in 
said  Colonies."  The  resolutions  further  proposed  to  re- 
peal all  the  objectionable  Acts  of  Parliament,  to  allow 
all  judges  appointed  by  the  Crown  in  the  Colonies  to 
hold  office  during  good  behavior,  and  to  regulate  the 
Courts  of  Admiralty  in  the  Colonies  "  in  such  a  manner 
as  to  make  the  same  more  commodious  to  those  who  sue 
or  are  sued  in  those  courts." 

The  resolutions  were  immediately  rejected  by  a  vote  of 
270  to  78. 

In  his  speech  in  support  of  these  resolutions,  Burke 
said: 

The  proposition  is  peace;  not  peace  through  the  medium 
of  war;  not  peace  to  be  hunted  through  the  labyrinth  of  intricate 
and  endless  negotiations  ;  not  peace  to  arise  out  of  universal 
discord,  fomented  from  principle,  in  all  parts  of  the  Empire; 


312  The  Administration  of  Dependencies 

not  peace,  to  defend  upon  the  juridical  determinations  of  perplex- 
ing questions y  or  the  precise  marking  of  the  shadowy  boundaries  of 
a  complex  government.  It  is  simple  peace,  sought  in  its  natural 
course,  and  in  its  ordinary  haunts.  It  is  peace  sought  in  the 
spirit  of  peace,  and  laid  in  principles  purely  pacific.  I  pro- 
pose, by  removing  the  ground  of  difference,  and  by  restoring 
the  former  unsuspecting  confidence  in  the  Mother  Country,  to 
give  a  permanent  satisfaction  to  your  people,  and  (far  from  a 
principle  of  ruling  by  discord)  to  recover  them  to  each  othen 
in  the  same  act,  and  by  the  bond  of  the  very  same  interest 
which  reconciles  them  to  the  British  Government. 

Perhaps,  Sir,  I  am  mistaken  in  my  idea  of  an  Empire,  as  dis- 
tinguished from  a  single  State  or  Kingdom.  But  my  idea  of  it  is 
this:  that  an  Empire  is  the  aggregate  of  many  States,  under 
one  common  Head;  whether  this  Head  be  a  monarch,  or  a 
presiding  republic.  It  does,  in  such  constitutions,  frequently 
happen  (and  nothing  but  the  dismal,  cold,  dead  uniformity  of 
servitude  can  prevent  its  happening)  that  the  subordinate 
parts  have  many  local  privileges  and  immunities.  Between 
these  privileges  and  the  supreme  common  authority,  the  line 
may  be  extremely  nice.  Of  course  disputes — often,  too,  very 
bitter  disputes — and  much  ill  blood,  will  arise.  But  though 
every  privilege  is  an  exemption  (in  the  case)  from  the  ordinary 
exercise  of  the  supreme  authority,  it  is  no  denial  of  it.  The 
claim  of  a  privilege  seems  rather,  ex  vi  termini,  to  imply  a 
superior  power;  for  to  talk  of  the  privileges  of  a  State  or  of 
a  person,  who  has  no  superior,  is  hardly  any  better  than 
speaking  nonsense.  Now,  in  such  unfortunate  quarrels, 
among  the  component  parts  of  a  great  political  union  of  com- 
munities, I  can  scarcely  conceive  anything  more  completely 
imprudent,  than  for  the  Head  of  the  Empire  to  insist,  that  if 
any  privilege  is  pleaded  against  his  will,  or  his  acts,  his  whole 
authority  is  denied,  instantly  to  proclaim  rebellion,  to  beat  to 
arms,  and  to  put  the  offending  Province  under  the  ban.  Will 
not  this,  Sir,  very  soon  teach  the  Provinces  to  make  no  dis- 
tinctions on  their  part  ?  Will  it  not  teach  them  that  the 
Government,  against  which  a  claim  of  liberty  is  tantamount 


British  Propositions,  1775  313 

to  high  treason,  is  a  Government  to  which  submission  is 
equivalent  to  slavery  ?  It  may  not  always  be  quite  convenient 
to  impress  dependent  communities  with  such  an  idea. 

"  We  are,  indeed,  in  all  disputes  with  the  Colonies,  by  the 
necessity  of  things,  the  judge.  It  is  true.  Sir.  But  I  con- 
fess that  the  character  of  judge  in  my  own  cause  is  a  thing 
that  frightens  me.  Instead  of  filling  me  with  pride,  I  am  ex- 
ceedingly humbled  by  it.  I  cannot  proceed  with  a  stern, 
assured,  judicial  confidence,  until  I  find  myself  in  something 
more  like  a  judicial  character.  I  must  have  these  hesitations 
as  long  as  I  am  compelled  to  recollect,  that,  in  my  little  reading 
upon  such  contests  as  these,  the  sense  of  mankind  has  at  least 
as  often  decided  against  the  superior  as  the  subordinate  power. 

My  idea,  without  considering  whether  we  yield  as  matter  of 
right,  or  grant  as  matter  of  favor,  is  to  admit  the  people  of  our 
Colonies  into  an  interest  in  the  Constitution;  and  by  record- 
ing that  admission  in  the  Journals  of  Parliament,  to  give  them 
IS  strong  an  assurance  as  the  nature  of  the  thing  will  admit, 
tiat  we  mean  forever  to  adhere  to  that  solemn  declaration  of 
s-stematic  indulgence. 

Burke's  resolutions  were  apparently  based  on  the 
thory  that  the  British  Constitution  did  not  "extend  to 
theColonies," — to  use  a  modern  expression.  He  appar- 
ently proposed  to  solve  the  difficulty  by  "extending  the 
Conaitution"  to  them  for  some  purposes  and  to  some 
exten:.  The  people  of  the  Colonies  w^ere  to  be  "ad- 
mittec  into  an  interest  in  the  Constitution,"  as  if  they 
had  nver  had  any  interest  in  it  before.  When  he  dis- 
tinguished his  plan  of  settlement  from  those  which  aimed 
at  a  peae  which  was  "to  depend  upon  the  juridical  deter- 
minatioi  of  perplexing  questions,  or  the  precise  marking 
of  the  shdowy  boundaries  of  a  complex  government," 
or  which  was  "to  be  hunted  through  a  labyrinth  of 
intricate  i\d  endless  negotiations,"  he  was  apparently 
disparagin},the  efforts  of  Dickinson  and  Lord  Chatham, 


314  The  Administration  of  Dependencies 

as  well  as  of  many  others,  who  were  attempting  to  work 
out  the  just  relationship  between  Great  Britain  and  the 
Colonies  as  a  problem  of  political  science  and  of  the 
general  public  law. 

Those,  however,  who  were  contending  that  the  Con- 
stitution of   the    Empire  could  only  be  ascertained  by 
"the   juridical   determination    of    perplexing   questions 
and  the  precise  marking  of  the  shadowy  boundaries  of  a 
complex  government  "  and  by  "intricate  negotiations," 
were  necessarily  and  inevitably  acting  on  the  theory  that 
the  people  of  the  Colonies  had  always  been  "admitted 
to  an  interest  in  the  Constitution"  since  the  inception 
of  the  Colonies,  in  the  sense  that  the  British  Constitution 
had  always  been  in  force  in  the  Colonies  except  so  far  as 
it  was  rendered  inapplicable  by  the  local  circumstances 
and  conditions.     It  was  this  fact,  and  this  fact  only,  which 
made  the  government  of  the  Empire  "  complex  "  and 
the  questions  of   its   government  "  perplexing,"  whicl 
made  the   boundaries   of   its   government   "  shadowy,' 
which  made  it  impossible  that  these  boundaries  should  le 
marked  except  as  the  result  of  "  intricate  and  endlfss 
negotiations  "  and  the  "  juridical  determination  "  of  'he 
questions  which  arose.     Burke  saw  that  the  Constituion 
of  the  British  Empire  was  based  on  different  princples 
from  the  Constitution  of  Great  Britain,  and  that  vhat 
was  true  in  this  case  was  true  in  every  Empire  fomded 
on  just  principles,  but  if  one  were  to  judge  entireh  from 
the  expression  "to  admit  the  Colonies  into  an  inte'est  in 
the  Constitution,"  it  would  appear  that  he  had  Dt  seen 
that  the  Constitution  of  the  British  Empire  har  always 
and  necessarily  been  related  to  the  British  Contitution 
so  that  the  Colonies  had  an  "  interest  "  in  it,  eer  since 
the  British  Empire  was  established. 

Perhaps,  however,  it  is  unjust  to  Burke  O  lay  too 
much  stress  on  the  word  "admit, "since,  in  th  course  of 
his  speech,  he  used  expressions  which  seem  necessarily 


British  Propositions,  1775  315 

to  imply  that  he  regarded  the  Colonies  as  always  having 
had  an  interest,  in  the  nature  of  things,  in  the  British  Con- 
stitution. If,  in  all  "disputes  with  the  Colonies"  Great 
Britain  "by  the  necessity  of  things"  was  a  "judge"  sit- 
ting as  "a  judge  in  its  own  cause,"  its  action  necessarily 
was  directed  toward  "the  juridical  determination  of  per- 
plexing questions  and  the  precise  marking  of  the  shadowy 
boundaries  of  a  complex  government,"  and  such  deter- 
mination could  only  be  made  as  the  result  of  "intricate 
and  endless  negotiations."  It  is  possible  that  he  used 
the  word  "admit "  rather  with  the  purpose  of  cutting  off 
discussion  concerning  the  existing  relationship  than  as 
implying  that,  up  to  that  time,  the  people  of  the  Colonies 
had  had  no  interest  in  the  British  Constitution. 

The  last  attempt  which  was  made  towards  a  concilia- 
tion with  the  Colonies  was  that  of  David  Hartley,  who, 
on  March  27,  1775,  introduced  resolutions  for  this  pur- 
pose in  the  House  of  Commons,  the  first  of  which  was  as 
follows : 

That  an  humble  address  be  presented  to  his  Majesty,  that 
he  will  be  graciously  pleased  to  give  orders  that  letters  of 
requisition  be  written  to  the  several  Provinces  of  his  Majesty's 
Colonies  and  Plantations  in  America,  to  make  provision  for 
the  purpose  of  defending,  protecting  and  securing  the  said 
Colonies  and  Plantations;  and  that  his  Majesty  will  be  pleased 
to  order  all  such  addresses  as  he  shall  receive  in  answer  to 
the  aforesaid  letters  of  requisition  to  be  laid  before  this  House. 

Hartley's  other  resolutions  provided  for  the  suspension, 
during  a  period  of  three  years,  of  the  Acts  "for  Blocking 
up  the  Port  of  Boston,"  "for  the  Impartial  Administra- 
tion of  Justice,"  and  "for  Regulating  the  Government  of 
the  Province  of  Massachusetts  Bay." 

A  form  of  letter  of  requisition  was  made  a  part  of  the 
first  resolution,  which,  had  it  been  adopted  by  Parlia- 
ment and  followed  by  the  King,  would  have  contained 


3i6  The  Administration  of  Dependencies 

an  offer  to  the  Colonies,  in  case  they  contributed  equit- 
ably to  the  Imperial  defence  by  money  or  troops  and 
made  "an  ostensible  contribution  to  the  general  supply," 
that  the  King  would  recommend  to  Parliament  a  relaxa- 
tion of  the  restrictions  on  their  trade,  and  would  allow 
them  "to  spread  into  the  continent  of  America." 

Hartley's  idea,  like  Burke's,  seems  to  have  been  to 
accomplish  exactly  the  same  purpose  as  Lord  Chatham 
had  aimed  at  in  his  Bill,  but  to  avoid  an  express  defini- 
tion of  the  power  of  Great  Britain  or  of  Parliament  or  of 
the  King,  leaving  it  open  for  definition  by  events  as  they 
should  arise  in  the  future.  His  prime  object  was  to  se- 
cure the  recognition  by  the  Colonies  of  some  power  to  be 
exercised  by  Parliament,  leaving  it  free  to  Great  Britain 
to  claim  that  its  power  was  more  than  that  exercised,  in 
case  it  should  be  found  necessary  in  the  future  to  exercise 
greater  power. 

In  explaining  his  resolutions.  Hartley  said : 

My  motion  originates  in  the  House  of  Commons,  to  desire 
the  King,  as  the  Executive  Magistrate,  to  put  their  plan  into 
effect.  If  the  power  of  making  requisitions  to  the  Colonies 
is  not  in  the  King,  my  motion  is  to  give  the  authority  and 
sanction  of  Parliament  to  this  measure.  It  is  so  far  from  be- 
ing my  proposition,  to  enable  the  Crown  to  raise  what  supply 
it  can  in  America,  independent  of  Parliament,  that  my  motion 
is  the  very  first  which  has  ever  had  in  contemplation  to  lay  a 
Parliamentary  control  upon  that  power,  and  to  require  that 
all  answers  from  America  shall  be  laid  before  this  House  for 
the  very  purpose  of  controlling  that  power  in  the  Crown.  I 
have  so  doubly  guarded  that  point  that  my  motion  is  not  even 
for  the  Crown  to  demand  a  supply  from  America,  but  for  ser- 
vices to  be  performed  in  America,  for  the  defence,  security 
and  protection  of  the  Colonies  themselves. 

Hartley's  resolutions  met  the  same  fate  as  Lord  Chat- 
ham's and  Burke's.     Neither  House  of  Parliament  would 


British  Propositions,  1775  317 

admit,  directly  or  indirectly,  that  the  power  of  Parliament 
over  the  Colonies  was  anything  less  than  a  power  to  bind 
them  "in  all  cases  whatsoever." 

Dickinson,  Lord  Chatham,  and  Burke  all  concurred  in 
the  conclusion  that  the  Imperial  State  in  the  Federal 
Empire  must,  from  the  necessity  of  the  case,  adjudicate 
the  rights  of  the  Member-States,  and  incidentally,  also, 
the  limits  of  its  own  jurisdiction.  Dickinson  said,  in  his 
New  Essay,  that  Parliament  was  "the  supreme  Legislature 
and  full  representative  of  the  parent  State,  and  the  only 
judge  between  her  and  her  children  in  commercial  inter- 
ests, which  the  nature  of  the  case,  in  the  progress  of  their 
growth,  admitted."  Lord  Chatham,  in  his  Bill,  called 
the  power  of  Parliament,  sitting  as  the  Parliament  of  the 
Empire,  a  "supreme  legislative  authority  and  superin- 
tending power";  and  Burke,  after  having  described  the 
power  of  the  Imperial  Parliament  as  a  power  of  "provi- 
dent and  beneficent  superintendence"  in  his  speech  on 
American  Taxation,  said  in  his  speech  on  Conciliation: 
"  We  are,  indeed,  in  all  disputes  with  the  Colonies,  by 
the  necessity  of  the  case,  the  judge." 

Hartley,  too,  was  enthusiastically  in  favor  of  Lord 
Chatham's  plan  of  settlement,  if  it  could  have  been 
brought  about,  and  brought  forward  his  resolutions  in 
the  hope  of  accomplishing  the  same  result  at  which  Lord 
Chatham  was  aiming. 

It  may,  therefore,  be  said  that  every  British  plan  of 
settlement,  proposed  in  1775,  aimed  at  the  restoration 
or  the  declaration  of  the  Federal  Empire. 


CHAPTER   XVIII 

THE   FINAL  ISSUE,    1775-I776 

LORD  CHATHAM'S  Bill,  by  describing  the  power 
of  the  State  of  Great  Britain  in  the  Empire  as 
a  power  of  "superintendence,"  inevitably  precipi- 
tated a  second  debate,  in  the  second  session  of  Congress, 
which  began  on  May  10,  1775,  concerning  the  character 
and  extent  of  the  power  of  the  Imperial  State  in  the  Em- 
pire. Lord  North's  Proposals,  by  providing  for  a  Parlia- 
mentary determination,  having  in  some  respects  the  form 
of  an  adjudication,  of  the  amounts  of  the  contributions 
of  the  respective  Colonies  to  the  Imperial  defence  (and 
hence  providing,  by  necessary  implication,  for  Parlia- 
mentary adjudication  of  all  the  rights  of  the  Colonies), 
inevitably  precipitated  a  second  debate  concerning  the 
respective  functions  of  the  King  and  the  Parliament  in 
the  Empire.  These  were  the  two  fundamental  questions, 
if  the  British  Empire  was  a  political  organism. 

Before  reaching  the  consideration  of  these  questions, 
however,  there  had  to  be  a  second  discussion  and  settle- 
ment of  the  preliminary  question — whether  the  British 
Empire  was  a  political  organism,  or  State,  from  which 
withdrawal  of  any  of  the  Member-States  was  impossible 
except  upon  dissolution  by  mutual  consent,  or  whether 
it  was  a  mere  Alliance  of  States,  from  which  one  or  more 
might  secede  at  any  time. 

It  has  already  been  noticed  that,  at  the  first  session  of 
the  Congress,  this  question  had  been  strenuously  debated, 
and  that,  as  the  result,  the  majority  had  been  in  favor  of 
the  Federal-Imperialist  view,  in  Ayhich  it  was  necessarily 

318 


The  Final  Issue,  1 775-1 776  319 

implied  that  the  British  Empire  was  a  State.  In  the 
recess  between  the  first  and  the  second  sessions  of 
Congress,  however,  the  anti-Imperialist  or  Secessionist 
minority  had  shown  themselves  quite  unreconciled  to  the 
view  of  the  majority.  The  most  pronounced  anti-Im- 
perialist utterance  of  John  Adams  was  made  during  this 
recess,  shortly  before  the  news  of  Lord  Chatham's  Bill 
could  have  reached  America.  When  that  news  arrived, 
it  evidently  cut  the  ground  from  under  the  feet  of  this 
minority.  Lord  Chatham's  Bill  was  virtually  an  adjudica- 
tion of  the  whole  dispute  between  the  Colonies  and  Great 
Britain,  by  the  one  man  in  whom  the  Colonies  possessed 
absolute  confidence,  and  who  was  recognized  as  the 
greatest  statesman  of  his  day. 

Jefferson  has  borne  witness  to  the  profound  effect  which 
the  Bill  had  upon  the  thought  of  America.  On  May  7, 
1775,  he  wrote  to  Dr.  Wm.  Small: 

When  I  saw  Lord  Chatham's  Bill,  I  entertained  high  hope 
that  a  reconciliation  could  have  been  brought  about.  The 
difference  between  his  terms  and  those  offered  by  Congress 
might  have  been  accommodated,  if  entered  on  by  both  parties 
with  a  disposition  to  accommodate. 

In  the  Address  to  Governor  Dunmore  from  the  House 
of  Burgesses  of  Virginia,  of  June  12,  1775, — in  answer  to 
Lord  North's  Proposals, — which  Jefferson,  in  h.\s  Autobi- 
ography y  says  that  he  drafted,  it  was  said : 

There  was,  indeed,  a  plan  of  accommodation  offered  in 
Parliament  which,  though  not  entirely  equal  to  the  terms  we 
had  a  right  to  ask,  yet  differed  but  in  a  few  points  from  what 
the  General  Congress  had  held  out.  Had  Parliament  been 
disposed  sincerely,  as  we  are,  to  bring  about  a  reconciliation, 
reasonable  men  had  hoped  that  by  meeting  us  on  this  ground, 
something  might  have  been  done.  Lord  Chatham's  Bill  on  the 
one  part,  and  the  terms  of  Congress  on  the  other,  would  have 


320  The  Administration  of  Dependencies 

formed  a  basis  for  negotiations  which  a  spirit  of  accommoda- 
tion on  both  sides  might,  perhaps,  have  reconciled.  It  came 
recommended,  too,  from  one  whose  successful  experience  in 
the  art  of  government  should  have  insured  it  some  attention 
from  those  to  whom  it  was  intended.  He  had  shown  to  the 
world  that  Great  Britain,  with  her  Colonies  united  under  a  just 
and  honest  government,  formed  a  power  which  might  bid  de- 
fiance to  the  most  potent  enemies. 

Upon  the  reassembling  of  Congress  for  the  second 
session,  there  were  two  elements  of  the  situation  which 
made  for  unanimity, — the  appreciation  of  the  fact  that 
the  Colonies  could  not  hope  to  succeed  if  they  were 
divided  among  themselves,  and  the  influence  of  Lord 
Chatham's  opinion  in  favor  of  the  Federal-Imperialist 
majority.  The  result  was  a  partial  yielding  on  both  sides, 
which  brought  the  anti-Imperialists  into  substantial  ac- 
cord with  the  Federal-Imperialists,  and  which  led  the 
latter  to  take  an  enlarged  and  more  correct  conception  of 
the  character  of  the  Federal  Empire.  The  circumstances 
of  the  yielding  of  the  anti-Imperialist  party  to  the  general 
views  of  the  Federal-Imperialists  are  narrated  by  Jeffer- 
son and  were  as  follows : 

On  June  23,  1775,  Congress  appointed  a  committee  to 
prepare  a  Declaration  on  Taking  up  Arms.  The  first 
draft,  prepared  by  John  Rutledge,  was  unsatisfactory  to 
Congress,  and  the  report  was  recommitted  and  Jefferson 
and  Dickinson  added  to  the  committee.  Jefferson  pre- 
pared a  draft,  but  it  was  not  satisfactory  to  the  commit- 
tee, and  finally,  by  their  request,  Dickinson  wrote  a 
draft  incorporating  some  parts  of  Jefferson's,  which  was 
accepted  by  the  committee  and  by  Congress.  Jefferson 
in  his  Autobiography  says  of  his  draft: 

It  was  too  strong  for  Mr.  Dickinson.  He  still  retained  the 
hope  of  reconciliation  with  the  Mother  Country,  and  was  un- 
willing, it  should  be  lessened  by  offensive  statements.     He  was 


The  Final  Issue,  1 775-1 776  321 

so  honest  a  man,  and  so  able  a  one,  that  he  was  greatly  in- 
dulged even  by  those  who  could  not  feel  his  scruples.  We 
therefore  requested  him  to  take  the  paper,  and  put  it  in  a  form 
he  could  approve. 

Jefferson,  in  his  draft,  said  : 

Our  forefathers  established  civil  societies  with  various  forms 
of  constitution.  To  continue  their  connection  with  the  friends 
whom  they  had  left,  they  arranged  themselves  by  charters  of 
compact  under  the  same  common  King,  who  thus  cornpleted  their 
powers  of  full  and  perfect  legislation,  atid  became  the  link  of  union 
between  the  several  parts  of  the  Empire.  Some  occasional  as- 
sumptions of  power  by  the  Parliament  of  Great  Britain,  however 
unacknowledged  by  the  constitution  of  our  Governments,  were 
finally  acquiesced  in  through  warmth  of  affection. 

Dickinson  appended  to  Jefferson's  draft  a  query  whether 
"it  might  not  be  proper  to  take  notice  of  Lord  Chatham's 
Plan,  mentioning  his  great  abilities." 

In  the  Declaration  drafted  by  Dickinson,  as  finally 
adopted  by  Congress,  it  was  said : 

Our  forefathers  .  .  .  effected  settlements  in  the  dis- 
tant and  inhospitable  wilds  of  America,  then  filled  with 
numerous  and  warlike  nations  of  barbarians.  Societies  or 
Governments,  vested  with  perfect  Legislatures,  were  formed 
under  Charters  from  the  Crown,  and  an  harmonious  ijiter- 
course  was  established  betiveen  the  Colonies  and  the  Kingdom 
from  which  they  derived  their  origin.  .  .  .  Towards  the 
close  of  the  late  war,  it  pleased  our  Sovereign  to  make  a 
change  in  his  counsels.  From  that  moment  the  affairs  of  the 
British  Empire  began  to  fall  into  confusion.  .  .  .  Parlia- 
ment was  influenced  to  adopt  the  pernicious  project  [of  sub- 
duing and  plundering  the  Colonies],  and,  assuming  a  new 
power  over  them,  have  in  the  course  of  eleven  years  given 
such  decisive  specimens  of  the  spirit  and  consequences  at- 
tending this  power  as  to  leave  no  doubt  concerning  the  effects 
of  acquiescence  under  it.     .     .     . 


322  The  Administration  of  Dependencies 

But  why  enumerate  our  injuries  in  detail  ?  By  one  statute 
it  is  declared  that  Parliament  can  **  of  right  make  laws  to  bind 
us  in  all  cases  whatsoever."  What  is  to  defend  us  against  so 
enormous^  so  unlimited  a  power  ?  Not  a  single  man  of  those 
who  assume  it,  is  chosen  by  us,  or  is  subject  to  our  control  or 
influence  ;  but  on  the  contrary,  they  are  all  of  them  exempt 
from  the  operation  of  such  laws,  and  an  American  revenue,  if 
not  diverted  from  the  ostensible  purposes  for  which  it  is 
raised,  would  actually  lighten  their  own  burdens  in  proportion 
as  they  increase  ours. 

At  the  same  time  that  this  conversion  of  the  anti-Im- 
perialists to  the  general  principles  of  the  Federal-Imperi- 
alists occurred,  a  decided  change  occurred  in  the  views 
of  the  Federal-Imperialists.  The  anti-Imperialists  had 
evidently  insisted  that,  if  the  British  Empire  was  a  politi- 
cal organism,  or  State,  under  a  Constitution,  the  matter 
of  money  contributions  of  any  part  of  the  State  to  the 
defence  and  welfare  of  the  whole  State  could  not  be  ex- 
cepted out  of  the  matters  over  which  the  Imperial  State, 
as  the  Central  Government,  had  power,  and  the  Federal- 
Imperialists  had  evidently  been  unable  to  answer  this 
proposition.  The  anti-Imperialists  had  evidently  in- 
sisted, also,  that  if  the  British  Empire  was  a  State  com- 
posed of  States,  there  was  no  reason  why  the  subordinate 
Member-States  should  not  unite  or  federate  among  them- 
selves in  any  way  not  inconsistent  with  their  subordina- 
tion to  the  Imperial  State  which  might  be  best  in  their 
own  interests;  and  the  Federal-Imperialists  had  evidently 
assented  to  this  proposition.  When  this  point  was 
reached,  it  evidently  became  clear  to  both  parties  that 
the  real  question  at  issue  was  whether  the  British  Empire 
was  a  Federal  Empire  or  a  Unitary  State,  and  that  no  set- 
tlement was  possible  except  one  which  went  to  the  root 
of  the  matter  and  settled  that  question  once  for  all. 

That  this  change  of  view  on  the  part  of  the  Federal- 
Imperialists  regarding  the  matter  of  the  money  contri- 


The  Final  Issue,  i"]^S-^ll^  323 

butions  of  the  Colonies  to  the  Imperial  defence  and 
welfare  did,  in  fact,  occur,  and  that  it  resulted  in  a  sub- 
stantial unanimity  of  sentiment  in  Congress  that  Great 
Britain,  as  the  Imperial  State,  ought  to  have,  under  a 
just  and  proper  Constitution  of  the  Empire,  a  superin- 
tendence over  this  matter,  can  be  affirmed  on  no  less 
authority  than  that  of  Jefferson  and  Madison.  Writing, 
at  the  request  of  M.  Soul^s,  on  September  13,  1786,  in 
criticism  of  the  proof  sheets  of  his  Histoire  des  Troubles 
de  V Am^rique  Anglaise,  JefTerson,  said,  speaking  of  the 
issues  on  which  the  American  Revolution  was  fought : 

Dickinson  acknowledged,  in  his  Farmer's  Letters^  that  [Par- 
liament] could  levy  duties,  internal  or  external,  payable  in 
Great  Britain  or  in  the  States.  He  only  required  that  these 
duties  should  be  bona  fide  for  the  regulation  of  commerce,  and 
not  to  raise  a  solid  revenue.  He  admitted  that  they  might 
control  our  commerce,  but  not  tax  us.  This  mysterious  sys- 
tem took  for  a  moment  in  America  as  well  as  in  Europe.  But 
sounder  heads  saw  in  the  first  moment  that  he  who  could  put 
down  the  loom  could  stop  the  spinning-wheel,  and  he  who 
could  stop  the  spinning-wheel  could  tie  the  hand  which  turned 
it.  They  saw  that  this  flimsy  fabric  could  not  be  supported. 
Who  were  to  be  judges  whether  duties  were  imposed  with  a 
view  to  burthen  and  suppress  a  branch  of  manufacture  or  to 
raise  a  revenue  ?  If  either  party,  exclusively  of  the  other,  it 
was  plain  where  that  would  end.  If  both  parties,  it  was  plain 
where  that  would  end  also.  They  saw,  therefore,  no  clue  ta 
lead  them  out  of  their  difficulties  but  reason  and  right.  They 
dared  to  follow  them,  assured  that  they  alone  could  lead  to  de- 
fensible ground.  The  first  elements  of  reason  showed  that  the 
members  of  Parliament  could  have  no  power  which  the  people 
of  the  several  counties  had  not — that  these  had  naturally  a 
power  over  their  own  farms,  and  collectively  over  all  England 
— that  if  they  had  any  over  countries  out  of  England,  it  must 
be  founded  on  compact  or  force.  No  compact  could  be  shown, 
and  neither  party  chose  to  bottom  their  pretensions  on  force. 


324  The  Administration  of  Dependencies 

It  was  objected  that  this  annihilated  the  Navigation  Act. 
True,  it  does.  The  Navigation  Act,  therefore,  becomes  a 
proper  subject  of  treaty  between  the  two  nations.  Or,  if  Great 
Britain  does  not  choose  to  have  its  basis  questioned,  let  us  go 
on  as  we  have  done.  Let  no  new  shackles  be  imposed,  and  we 
will  continue  to  submit  to  the  old.  We  will  consider  the  re- 
strictions on  our  commerce  now  actually  existing,  as  compen- 
sations yielded  by  us  for  the  protections  and  privileges  we 
actually  enjoy,  only  trusting  that  if  Great  Britain,  on  a  revisal 
of  these  restrictions,  is  sensible  that  some  of  them  are  useless 
to  her  and  oppressive  to  us,  she  will  repeal  them.  But  on  this 
she  shall  be  free.  Place  us  in  the  condition  we  were  when  the 
King  came  to  the  throne,  let  us  rest  so,  and  we  will  be  satis- 
fied. This  was  the  ground  on  which  all  the  States  very  soon 
found  themselves  rallied,  and  there  was  no  other  which  could 
be  defended. 

Madison,  speaking  reminiscently  in  the  Convention 
for  framing  the  Constitution  of  the  United  States,  on 
August  13,  1787,  said: 

When  the  contest  was  first  opened  with  "Great  Britain,  their 
power  to  regulate  trade  was  admitted,  their  power  to  raise  re- 
venue rejected.  An  accurate  investigation  of  the  subject, 
afterwards,  proved  that  no  line  could  be  drawn  between  the 
two  cases. 

And  in  a  letter  to  Jefferson  of  October  24,  1787,  Madi- 
son said: 

How  long  has  it  taken  to  fix,  and  how  imperfectly  is  yet 
fixed,  the  legislative  power  of  corporations,  though  that  power 
is  subordinate  in  the  most  complete  manner?  The  line  of  dis- 
tinction between  the  power  of  regulating  trade  and  that  of 
drawing  revenue  from  it,  which  was  once  considered  the  bar- 
rier of  our  liberties,  was  found,  on  fair  discussion,  to  be 
absolutely  untenable. 

The  documents  which  evidenced  the  change  in  the 
views  of  Congress  on  these  three  different  subjects, — 


The  Final  Issue,  1 775-1 776  325 

namely,  the  right  of  the  Imperial  State,  as  the  Central 
Government,  to  adjudicate  the  contributions  to  the  Im- 
perial defence  and  welfare ;  the  right  of  the  Colonies,  as 
subordinate  Member-States,  to  federate  or  unite;  and  the 
necessity  for  a  general  settlement  which  should  finally 
determine  the  character  of  the  Empire  as  a  federal  organ- 
ism, as  opposed  to  a  settlement  relating  solely  to  the  ex- 
isting grievances, — were  the  second  Address  to  the  King, 
of  July  8,  drafted  by  Dickinson,  as  chairman  of  the  com- 
mittee, the  second  Address  to  the  People  of  Great 
Britain,  of  the  same  date,  prepared  by  a  committee  of 
which  Richard  Henry  Lee  was  chairman,  and  the  reso- 
lutions on  Lord  North's  Proposals,  of  July  31,  prepared 
by  a  committee  of  which  Franklin  was  chairman,  and 
Jefferson,  John  Adams,  and  Richard  Henry  Lee  mem- 
bers. 

In  the  Address  to  the  King,  the  relationship  between 
Great  Britain  and  the  Colonies  was  called  "the  Union 
between  the  Mother  Country  and  the  Colonies,"  Great 
Britain  was  described  as  "the  Sovereign  and  Parent 
State,"  and  the  Parliament  was  spoken  of  as  "that 
august  Legislature,  the  Parliament." 

In  this  Address,  the  Congress  said: 

Attached  to  your  Majesty's  person,  family  and  government 
with  all  devotion  that  principle  and  affection  can  inspire,  con- 
nected with  Great  Britain  by  the  strongest  ties  that  can  unite 
societies,  and  deploring  every  event  that  tends  in  any  way  to 
weaken  them,  we  solemnly  assure  your  Majesty  that  we  not 
only  most  ardently  desire  the  former  harmony  between  her  and 
these  Colonies  may  be  restored,  but  that  a  concord  may  be  es- 
tablished between  them  upon  so  firm  a  basis  as  to  perpetuate 
its  blessings,  uninterrupted  by  any  future  dissensions,  to  suc- 
ceeding generations  in  both  countries. 

We  beg  leave  to  assure  your  Majesty  that  notwithstanding 
the  sufferings  of  your  loyal  colonists  during  the  course  of  this 
present  controversy,  our  breasts  retain  too  tender  a  regard  for 


326  The  Administration  of  Dependencies 

the  Kingdom  from  which  we  derive  our  origin,  to  request  such 
a  reconciliation  as  might  in  any  manner  be  inconsistent  with 
her  dignity  and  welfare.  These,  related  as  we  are  to  her, 
honor  and  duty,  as  well  as  inclination,  induce  us  to  support 
and  advance  ;  and  the  apprehensions  that  now  oppress  our 
hearts  with  unspeakable  grief  being  once  removed,  your  Ma- 
jesty will  find  your  faithful  subjects  on  this  continent  ready 
and  willing,  at  all  times,  as  they  have  ever  been,  with  their 
lives  and  fortunes,  to  maintain  the  rights  and  interests  of  your 
Majesty  and  of  our  Mother  Country. 

We  therefore  beseech  your  Majesty  that  your  royal  authority 
and  influence  may  be  graciously  interposed  to  procure  us  relief 
from  our  afflicting  fears  and  jealousies  occasioned  by  the  sys- 
tem [of  statutes  and  regulations  adopted  for  the  administration 
of  the  Colonies]  before  mentioned,  and  to  settle  peace  through 
every  part  of  your  dominions,  with  all  humility  submitting  to 
your  Majesty's  wise  consideration  whether  it  may  not  be  ex- 
pedient for  facilitating  those  important  purposes  that  your 
Majesty  may  be  pleased  to  direct  some  mode  by  which  the 
united  applications  of  your  faithful  colonists  to  the  throne,  in 
pursuance  of  their  common  counsels,  may  be  improved  into  a 
happy  and  permanent  reconciliation. 

For  by  such  arrangements  as  your  Majesty's  wisdom  can 
form,  for  collecting  the  united  sense  of  your  American  people, 
we  are  convinced  your  Majesty  would  receive  .  .  ,  satis- 
factory proofs  of  the  disposition  of  the  colonists  towards  their 
Sovereign  and  Parent  State. 

In  the  Address  to  the  People  of  Great  Britain,  it  was 
said : 

It  is  alleged  that  we  contribute  nothing  to  the  common  de- 
fence. To  this  we  answer,  that  the  advantages  which  Great 
Britain  receives  from  the  monopoly  of  our  trade  far  exceed  our 
proportion  of  the  expense  necessary  for  that  purpose.  But 
should  these  advantages  be  inadequate  thereto,  let  the  restric- 
tions on  our  trade  be  remolded,  and  we  will  cJieer fully  contribute 
such  proportion  when  constitutionally  required. 

A  plan  of  accommodation  (as  it  has  been  absurdly  called) 


The  Final  Issue,  i"]']S~^ll^  3^7 

has  been  proposed  by  your  Ministers  to  our  respective 
Assemblies.  .  .  .  What  is  submitted  to  our  consider- 
ation ?  We  contend  for  the  disposal  of  our  property. 
We  are  told  that  our  demand  is  unreasonable,  that  our 
Assemblies  may  indeed  collect  our  money,  but  thai  they 
must  at  the  same  time  offer,  not  what  your  exigencies  or  ours 
require^  but  so  much  as  shall  be  deemed  sufficient  to  satisfy  the 
desires  of  a  Minister  and  enable  him  to  provide  for  favorites 
and  dependents.  A  recurrence  to  your  own  Treasury  will 
convince  you  how  little  of  the  money  already  extorted  from  us 
has  been  applied  to  the  relief  of  your  burdens.  To  suppose 
that  we  would  thus  grasp  the  shadow  and  give  up  the  sub- 
stance, is  adding  insult  to  injuries. 

We  have  nevertheless  again  presented  an  humble  and  duti- 
ful petition  to  our  Sovereign,  and  to  remove  every  imputation 
of  obstinacy,  have  requested  his  Majesty  to  direct  some  mode  by 
which  the  united  applications  of  his  faithfzil  colonists  may  be  im- 
proved into  a  happy  and  permanent  reconciliation.  We  are  willing 
to  treat  on  such  terms  as  can  alone  render  an  accommodation 
lasting. 

Yet  conclude  not  from  this  that  we  propose  to  surrender  our 
property  into  the  hands  of  your  Ministry,  or  vest  your  Parlia- 
ment with  a  power  which  may  terminate  in  our  destruction. 

In  the  resolutions  of  Congress  of  July  31,  1775, 
relating  to  Lord  North's  Proposals,  drafted  by  Jefferson, 
it  was  said : 

We  think  the  attempt  unnecessary  to  raise  upon  us,  by  force 
or  by  threats,  our  proportional  contributions  to  the  common 
defence,  when  all  know,  and  themselves  acknowledge,  we  have 
fully  contributed  whenever  called  upon  to  do  so  in  the  charac- 
ter of  freemen. 

We  are  of  opinion  that  it  is  not  just  that  the  Colonies  should  be 
required  to  oblige  themselves  to  other  contributions  while  Great 
Britain  possesses  a  monopoly  of  their  trade.  This,  of  itself,  lays 
them  under  heavy  contribution.  To  demand,  therefore,  ad- 
ditional aids  in  the  form  of  a  tax,  is  to  demand  the  double  of 


328  The  Administration  of  Dependencies 

their  equal  proportion.  If  we  are  to  contribute  equally  with  the 
other  parts  of  the  Empire,  let  us,  equally  with  them,  enjoy  free 
commerce  with  the  whole  world.  But  while  the  restrictions  on 
our  trade  shut  to  us  the  resources  of  wealth,  is  it  just  that  we 
should  bear  all  other  burthens  equally  with  those  to  whom 
every  resource  is  open? 

We  conceive  that  the  British  Parliament  has  no  right  to  in- 
termeddle with  our  provisions  for  the  support  of  civil  govern- 
ment or  administration  of  justice.  The  provisions  we  have 
made  are  such  as  please  ourselves  and  are  agreeable  to  our 
own  circumstances.  They  answer  the  substantial  purposes  of 
government  and  of  justice;  and  other  purposes  than  these 
should  not  be  answered.  We  do  not  mean  that  our  people 
shall  be  burthened  with  oppressive  taxes,  to  provide  sinecures 
for  the  idle  or  wicked,  under  color  of  providing  for  a  civil  list. 
While  Parliament  pursue  their  plan  of  civil  government  within 
their  own  jurisdiction,  we  also  hope  to  pursue  ours  without  moles- 
tation. 

We  are  of  opinion  the  proposition  is  altogether  unsatis- 
factory because  it  imports  only  a  suspension  of  the  mode,  not 
a  renunciation  of  the  pretended  right  to  tax  us  ;  and  because 
it  does  not  propose  to  repeal  the  several  Acts  of  Parliament 
[describing  them].  Nor  do  they  renounce  the  power  of  sus- 
pending our  own  Legislatures,  and  of  legislating  for  us 
themselves  in  all  cases  whatsoever.  On  the  contrary,  to  show 
that  they  mean  no  discontinuance  of  injury,  they  pass  Acts,  at 
the  very  time  of  holding  out  this  proposition,  for  restraining 
the  commerce  and  fisheries  of  the  Provinces  of  New  England, 
and  for  interdicting  the  trade  of  other  Colonies  with  foreign 
nations  and  with  each  other.  This  proves  unequivocally  they 
mean  not  to  relinquish  the  exercise  of  indiscriminate  legislation 
over  us. 

Upon  the  whole,  this  proposition  seems  to  have  been  held 
up  to  the  world,  to  deceive  it  into  a  belief  that  there  was  noth- 
ing in  dispute  between  us  but  the  mode  of  levying  taxes; 
and  that  the  Parliament  having  now  been  so  good  as  to  give 
up  this,  the  Colonies  are  unreasonable  if  not  perfectly  satisfied: 
whereas  in  truth,  our  adversaries  still  claim  a  right  of  demand- 


The  Final  Issue,  1 775-1 776  329 

tng  ad  libitum,  and  of  taxing  us  themselves  to  the  full  amount 
of  their  demand  if  we  do  not  comply  with  it.  This  leaves  us 
without  anything  we  can  call  property,  Bui  what  is  of  more 
importance,  and  what  in  this  proposal  they  keep  out  of  sight,  as  if 
no  such  point  was  now  in  contest  between  us,  they  claim  a  right  to 
alter  our  charters  and  established  laws,  and  leave  us  without  any 
security  for  our  lives  or  liberties. 

It  is  noticeable  that  the  method  adopted  by  the  Con- 
gress for  modifying  the  terms  of  the  ultimatum  so  as  to 
conform  to  the  change  of  sentiment  was  exactly  the  same 
as  the  method  adopted  in  the  original  transmission  of  the 
ultimatum.  The  first  Address  to  the  King  had  not  ex- 
pressly claimed  that  Great  Britain  had  not,  under  the 
Constitution  of  the  Empire,  any  power  whatever  over  the 
contributions  of  the  Colonies  to  the  Imperial  defence  and 
welfare.  It  had  simply  claimed  that  Acts  of  Parliament 
taxing  the  Colonies,  without  previous  adjudication  and 
without  any  hearing  of  them,  and  under  a  claim  of  Par- 
liament to  legislate  so  as  to  bind  the  Colonies  in  all  cases 
whatsoever,  were  violations  of  the  Constitution  of  the 
Empire.  The  Colonies  had  not  in  the  least  altered  their 
views  in  this  respect,  but  they  had  so  expressed  the  first 
Address  that  it  gave  the  impression  that  their  contention 
was  that  the  King  of  Great  Britain  had  only  the  power  to 
annul  these  unconstitutional  Acts  of  Parliament,  and  had 
not  the  power  of  himself,  in  his  official  capacity  as  Dis- 
poser of  the  Empire,  to  make  rules  and  regulations  in  ex- 
ecution of  his  adjudications  concerning  the  rights  of  the 
Imperial  State  and  the  Colonies,  as  Member-States,  under 
the  Constitution  of  the  Empire.  The  second  Address  was 
necessary  to  make  it  clear  that  the  Colonies  were  not  de- 
nying the  whole  power  of  the  State  of  Great  Britain,  as 
the  Central  Government  of  the  Empire,  over  their  contri- 
butions to  the  Imperial  defence  and  welfare,  and  that  they 
admitted  that  that  State  had  a  conditional  and  limited 


330  The  Administration  of  Dependencies 

power  in  that  respect,  as  in  all  others,  which,  according 
to  their  view  (though  they  did  not  insist  upon  their  view  if 
the  King  thought  otherwise  and  could  arrange  for  proper 
and  constitutional  action  by  Parliament),  should  be  ex- 
ercised by  the  King  in  his  official  capacity — in  which  he 
would  necessarily  act  under  the  advice  of  a  suitable  ex- 
pert tribunal  appointed  by  him — by  making  and  causing 
to  be  executed  the  needful  rules  and  regulations. 

The  prayer  of  the  Address  to  the  King  was  accordingly 
enlarged  so  as  to  ask  the  King,  as  Disposer  of  the  Em- 
pire, not  merely  to  give  negative  relief  by  way  of  injunc- 
tion, but  to  give  affirmative  relief  by  decreeing  the 
specific  performance  of  the  contract  between  the  parties 
and  also  to  specifically  perform  it,  making  all  needful 
rules  and  regulations  for  this  purpose,  as  the  expert  rep- 
resentative of  Great  Britain,  acting  as  the  Imperial  State. 
He  was  thus  asked  to  act  as  "judge  in  his  own  cause," 
to  use  the  words  of  Burke,  and  to  conform  his  action  as 
party  litigant  to  his  own  decision  as  judge.  Such  a  pro- 
posal that  the  King  should  exercise  inconsistent  functions 
was  not  a  novel  idea.  The  King  of  Great  Britain,  as  does 
the  Chief  Executive  of  every  State,  necessarily  executed 
every  day  a  great  variety  of  inconsistent  functions.  The 
whole  conception  of  the  King,  as  the  Crown,  was  of  the 
King  exercising  a  great  variety  of  inconsistent  functions 
and  harmonizing  them  all  towards  a  common  end.  It 
was  this  inherent  inconsistency  of  his  various  functions 
which  required  the  functions  to  be  distributed  to  expert 
officers  and  tribunals,  whose  actions  the  King,  advised  by 
men  most  expert  in  the  science  of  government,  harmo- 
nized and  directed. 

In  this  Address,  the  Congress  took  occasion  to  declare 
themselves  a  constitutional  body.  The  King  was  asked 
"to  direct  some  mode  by  which  the  united  applications 
of  [his]  faithful  colonists  to  the  throne,  in  pursuance  of 
[their]  common  counsels,    [might]  be   improved   into  a 


The  Final  Issues,  i*]']S-'^ll^        33 1 

happy  and  permanent  reconciliation,"  and  to  make  "such 
arrangements  as  [his]  Majesty's  wisdom  can  form,  for  col- 
lecting the  united  sense  of  [his]  American  people."  If 
the  Congress  was  a  constitutional  body,  it  could  only  be 
such  on  the  theory  that  the  Colonies  had  a  right,  under 
the  Constitution  of  the  Empire,  to  unite  or  federate  as 
their  interests  might  require,  provided  no  injury  was  done 
to  the  whole  Empire  thereby,  and  provided  the  union  or 
federation  was  not  on  terms  inconsistent  with  the  per- 
formance by  the  Imperial  State  of  its  proper  functions  in 
the  Empire.  This  was  a  following. out  of  the  idea  of 
Lord  Chatham,  whose  Bill  had  provided  for  the  recogni- 
tion of  the  Congress  as  a  permanent  constitutional  body. 
The  King  was  by  this  second  Address  petitioned  not 
merely  to  "interpose  "  his  "royal  authority  and  influ- 
ence "  to  procure  the  Colonies  "relief,"  and  to  "restore 
harmony,"  but  also  to  "establish"  a  permanent  "con- 
cord," and,  for  this  purpose,  to  "direct  a  mode"  of  action 
which  would  lead  to  a  "happy  and  permanent  reconcilia- 
tion." The  Congress  had  realized  that  a  settlement 
which  purported  merely  to  restore  the  situation  as  it  ex- 
isted at  the  close  of  the  war  in  1763  would  be  ineffectual, 
since  the  discussion  had  developed  three  distinct  and 
different  views  concerning  the  character  of  the  political 
relationship  which  existed  in  1763  between  Great  Britain 
and  the  Colonies, — the  British  view,  the  American  Fed- 
eral-Imperialist view,  and  the  American  anti-Imperialist 
view.  This  demand  of  Congress  was  also  an  adoption  of 
Lord  Chatham's  opinion  of  the  necessities  of  the  political 
situation.  He  had  shown,  by  his  Bill,  that  he  regarded 
as  useless  a  settlement  which  did  not  expressly  declare 
the  power  of  Great  Britain  to  be  a  "superintending 
power"  accompanied  by  the  "supreme  legislative  au- 
thority "  necessary  to  execute  it,  thus  recognizing  the 
statehood  of  the  Colonies  and,  in  effect,  declaring  the 
British  Federal  Empire. 


332  The  Administration  of  Dependencies 

The  change  of  view  in  Congress  concerning  the  contri- 
butions of  the  Colonies  to  the  Imperial  defence  and  wel- 
fare was  expressed  in  the  second  Address  to  the  People 
of  Great  Britain — Parliamentary  taxation  of  the  people  of 
the  Colonies  being  carefully  distinguished  from  an  ap- 
portionment of  the  shares  of  the  expenditure  necessary 
for  the  Imperial  defence  and  welfare  among  the  States  of 
the  Empire,  adjudicated  by  the  King.  The  power  of 
Parliament,  so  long  as  it  persisted  in  its  claim  of  uncon- 
ditional and  unlimited  power,  was  denied,  as  was  also  the 
power  of  the  Ministry — they  being  regarded  as  officials 
who  were  nominally  the  King's  advisers,  but  who  were 
actually  under  the  dictation  of  the  House  of  Commons, 
which  was  persistent  in  the  claim  of  unconditional  and 
unlimited  power  for  Parliament.  The  statement  that, 
upon  withdrawal  by  Parliament  of  its  restrictions  upon 
the  trade  of  the  Colonies,  the  Colonies  would  "cheerfully 
contribute  their  necessary  proportion  to  the  common  de- 
fence when  constitutionally  required  "  was  followed  by  a 
statement  that  "to  remove  every  imputation  of  obsti- 
nacy," they  had  petitioned  the  King  to  suggest  a  plan 
of  "permanent  reconciliation,"  adding  that  they  were 
"willing  to  treat  on  such  terms  as  can  alone  render  an 
accommodation  lasting." 

In  the  resolution  concerning  Lord  North's  Proposals 
occurred  a  plain  statement  by  the  Colonies  that  the 
British  Parliament  could  exercise  power,  under  the  Con- 
stitution of  the  Empire,  only  within  a  certain  sphere  of 
jurisdiction — in  other  words  that  the  Acts  of  the  British 
Parliament  relating  to  the  Colonies  were  to  be  measured 
by  the  Constitution  of  the  Empire,  and,  if  in  excess  of  the 
powers  granted  to  Parliament  by  that  Constitution,  were 
null  and  void.  The  statement  that  Parliament  must 
"pursue  their  plan  of  civil  government  within  their  own 
jurisdiction"  unmistakably  fixed  the  character  of  the  pro- 
ceedings  of  the  Congress  as  a  suit  in  equity  brought  by 


The  Final  Issue,  1 775-1 776  333 

Member-States  of  the  Federal  Empire,  against  the  Im- 
perial State,  as  a  Member-State,  before  the  King  of  Great 
Britain,  as  ex  officio  the  Disposer  of  the  Empire,  having 
authority  to  finally  interpret,  adjudicate,  and  execute  the 
unwritten  Constitution  of  the  Empire,  through  an  expert 
tribunal  as  his  adviser,  and  to  finally  determine  the  con- 
stitutionality of  any  act  of  any  Member-State,  by  virtue 
of  power  and  authority  granted  to  him  by  the  people  of 
the  whole  Empire. 

The  proposition  of  the  Congress  that  in  case  Parlia- 
ment would  repeal  the  laws  taxing  the  Colonies  and 
would  remove  or  decrease  the  restrictions  on  their  trade, 
they  would  contribute  directly  to  the  Imperial  defence  a 
sum  equal  to  the  amount  so  saved  to  them,  was  a  test- 
proposition.  Had  Parliament  accepted  it,  the  accept- 
ance would  have  been  an  admission  that  the  Colonies 
were  Member-States  of  the  Empire,  which  were  already 
paying  indirectly  to  the  State  of  Great  Britain  for  its  ser- 
vices as  the  Protector  and  Disposer  of  the  Empire  a  sum 
which  both  parties  agreed  to  be  fair  and  just,  under  a 
contract,  or  Constitution  of  the  Empire,  which  provided 
that  Great  Britain  should  perform  these  services,  and 
should  be  paid  therefor  a  reasonable  compensation.  The 
proposition,  when  accepted,  would  have  been  a  contract, 
operating  as  an  amendment  to  the  original  contract,  or 
Constitution  of  the  Empire,  and  would  have  been,  by 
necessary  implication,  a  recognition  of  the  British  Em- 
pire as  a  federal  organism  and  a  State,  existing  under  a 
Constitution,  supreme  for  Imperial  purposes  over  the  Con- 
stitution of  the  State  of  Great  Britain.  Had  this  proposi- 
tion been  accepted,  Great  Britain  could  not  logically  have 
refused  to  have  the  unwritten  Constitution  of  the  Empire 
interpreted  by  the  King,  as  the  Head  of  the  expert  part 
of  its  own  Government,  in  case  it  disagreed  with  the 
Colonies  concerning  the  proper  interpretation,  and  the 
Colonies  would    have   accomplished   the   real  result   at 


334  The  Administration  of  Dependencies 

which  they  were  aiming, — as  Congress  stated  in  their  reso- 
lutions concerning  Lord  North's  Proposals, — namely,  an 
admission  that  Great  Britain  had  no  right  "to  alter  our 
charters  and  established  laws,  and  leave  us  without  any 
security  for  our  lives  and  liberties." 

That  both  parties  in  Congress  were  united  in  the  hope 
that  these  last  Addresses  might  lead  to  a  reconciliation  is 
shown  by  two  letters  of  Jefferson,  the  latter  written  a 
month  after  news  of  the  rejection  of  the  second  Address 
to  the  King,  called  the  "Olive  Branch"  petition,  reached 
America,  but  before  the  rejection  by  Parliament  of  all 
plans  for  conciliation. 

In  a  letter  to  John  Randolph,  written  August  25, 
1775,  he  said : 

I  am  sincerely  one  of  those  who  wish  for  a  reunion  with 
their  Parent  Country,  and  would  rather  be  in  dependence  on 
Great  Britain,  properly  limited,  than  on  any  other  nation  on 
earth,  or  on  no  nation.  But  I  am  one  of  those  who,  rather 
than  submit  to  the  rights  of  legislating  for  us,  assumed  by  the 
British  Parliament,  and  which  late  experience  has  shown  they 
will  so  cruelly  exercise,  would  lend  my  hand  to  sink  the  whole 
Island  in  the  ocean. 

On  November  29,  1775,  Jefferson  again  wrote  to  Ran- 
dolph : 

Believe  me,  dear  Sir,  there  is  not  in  the  British  Empire  a 
man  who  more  cordially  loves  a  union  with  Great  Britain  than 
I  do.  But,  by  the  God  that  made  me,  I  will  cease  to  exist 
before  I  yield  to  a  connection  on  such  terms  as  the  British  Parlia- 
ment propose  ;  and  in  this,  I  think,  I  speak  the  sentiments  of 
America. 

It  was  not  "  dependence,"  therefore,  to  which  Jeffer- 
son, in  1775,  objected,  but  the  "cruel  exercise  "  of  power 
by  Great  Britain,  claimed  by  it  to  be  "  legislative,"  and 


The  Final  Issue,  ijys-^77^  335 

the  "terms  proposed  by  the  British  Parliament,"  for  the 
continuance  of  the  connection. 

Burke,  on  November  i6,  during  the  debate  on  the  Bill 
to  Prohibit  Trade  and  Intercourse  with  America,  proposed 
by  the  Ministry,  renewed  his  previous  measures  for  con- 
ciliation, by  introducing  a  Bill  intended  to  restore  the 
Colonies  to  the  situation  in  which  they  were  at  the  close 
of  the  war  in  1763.     The  Bill  was  immediately  rejected. 

On  December  7,  1775,  Hartley,  in  the  House  of  Com- 
mons, offered  resolutions  providing  for  the  acceptance  of 
the  proposition  of  Congress  that  the  Colonies  should  con- 
tribute to  the  Imperial  defence  in  proportion  as  the  re- 
strictions on  their  trade  were  removed,  provided  the  Acts 
taxing  them  were  repealed,  adding  to  them  a  proviso  that 
the  several  Colonial  Legislatures  should,  as  a  prerequisite 
to  the  repeal  of  the  Acts  of  Parliament  taxing  the  Colo- 
nies, register  an  Act  of  Parliament  to  the  effect  that 
"every  slave  in  North  America  should  be  entitled  to  his 
trial  by  jury  in  all  criminal  cases,"  as  an  evidence  of  the 
submission  of  the  Colonies  to  the  exercise  of  some  degree 
of  power  by  Parliament  of  its  own  mere  will, — his  purpose 
evidently  being  to  counteract  in  this  way  the  implication 
which  would  have  arisen  from  an  unqualified  acceptance 
of  the  proposition  of  Congress,  that  the  Empire  was  a 
Federal  Empire,  and  thus  to  avoid  a  definition  of  the 
power  of  Parliament.  In  his  speech  in  support  of  his 
resolutions  he  said : 

The  House  having  heard  this  most  dutiful  and  affectionate 
petition  to  the  King  from  their  fellow-subjects  in  America, 
humbly  supplicating  his  Majesty  to  become  the  mediator  of 
peace  between  them  and  their  Parent  State,  I  hope  that  this, 
added  to  all  the  remembrance  of  our  former  friendships,  to 
all  the  ties  of  consanguinity  and  derivation  from  one  common 
stock,  by  which  we  claim  a  joint  inheritance  and  equal  right 
to  peace,  liberty  and  safety,  will  carry  some  favorable  influ- 
ence upon  the  heart  of  this  House. 


33^  The  Administration  of  Dependencies 

In  these  circumstances,  it  should  seem  well  becoming  the 
magnanimity  and  moderation  of  Parliament  to  endeavor  to 
point  out  some  definite  mode  and  terms  of  reconciliation,  in 
compliance  with  the  prayer  of  that  petition,  pursuing  the  same 
spirit  of  peace  which  breathes  through  every  line  of  it,  and  as 
a  merited  return  for  that  confidential  and  respectful  deference, 
by  which  they  refer  implicitly  to  his  Majesty's  wisdom  and 
justice  the  mode  and  terms  of  accommodation,  declaring  in 
the  most  unreserved  manner  that,  notwithstanding  all  their 
sufferings,  they  retain  too  tender  a  regard  for  the  Kingdom 
from  which  they  derive  their  origin,  to  request  such  a  recon- 
ciliation as  might  in  any  manner  be  inconsistent  with  her  dig- 
nity or  welfare,  and  that  his  Majesty  will  find  his  faithful 
subjects  in  America  ready,  at  all  times,  as  they  have  ever  been, 
with  their  lives  and  fortunes,  to  assert  and  maintain  the  rights 
and  interests  of  his  Majesty  and  of  their  Mother  Country. 

In  the  course  of  his  speech,  he  made  the  following  plea 
in  favor  of  accepting  the  plan  proposed  by  Congress, 
which,  though  based  wholly  on  expediency,  would  have 
been  equally  pertinent  and  true  if  he  had  based  it  upon 
the  requirements  of  justice,  in  view  of  the  unwritten  com- 
pact between  Great  Britain  and  the  Colonies,  as  States, 
forming  the  Constitution  of  the  Empire: 

The  introduction  of  requisitions  in  the  time  of  peace  is 
novel,  and  therefore  must  be  expected  to  be  attended  with 
many  consequential  alterations  in  the  constitutional  connec- 
tion of  the  Colonies  with  this  country.  I  mean,  upon  the 
restrictions  of  their  trade,  which  have  hitherto  been  always 
accepted  as  an  equivalent  to  pecuniary  contributions.  If  we 
should  put  the  Colonies  upon  a  new  footing  of  money  con- 
tribution, in  the  time  of  peace,  there  can  be  no  doubt  but 
that  this  country  will  think  them  entitled  to  relaxations  in 
trade,  in  proportion  as  they  contribute.  I  have  no  doubt 
but  that,  in  future  times,  we  shall  come  to  be  convinced  of 
the  narrowness  of  that  policy  which  thinks  to  cherish  trade 
by  restrictions.     We  shall  see  many  of  these  poor  expedients 


The  Final  Issue,  1 775-1 776  337 

in  the  same  light  as  we  now  do  the  little  policy  of  Queen 
Elizabeth's  reign,  about  corporations,  apprentices,  poor  laws 
&c.  Therefore,  though  I  might  not  have  been  the  first  sup- 
porter of  this  new  system  of  contributions  to  peace  requisi- 
tions, yet  I  think  it  promises  to  open  a  more  liberal  system 
than  we  are  attached  to  now.  The  intercourse  of  one  com- 
mon cause  in  the  common  defence  of  the  whole  Empire,  may 
form  a  new  and  salutary  connection  between  Great  Britain  and 
her  Colonies,  instead  of  that  connection  by  grievous  restraints, 
which  will  become  more  galling,  and  appear  more  absurd 
every  day.  We  shall  have  at  least  the  choice  of  two  ifiodes  of 
receiving  their  assistance,  which  we  may  exercise  according  to 
the  discretion  of  the  case,  sometimes  through  the  channel  of 
trade,  sometimes  through  supply.  The  option  may  easily  be 
adjusted,  without  either  strangulating  the  hand  of  industry,  or 
closing  the  hand  of  contribution.  Ireland,  besides  providing 
for  its  own  internal  establishment,  provides  annually,  for  the 
common  defence,  a  considerable  number  of  men  in  the  land 
service.  America  may  contribute  the  naval  supply,  being  that 
part  of  the  common  concern  which  forms  the  common  bond  of 
connection  between  us.  Seamen,  ships  or  naval  stores  may 
be  the  contribution  in  America. 

These  resolutions  of  Hartley's  met  the  same  fate  as 
those  originally  introduced  by  him. 

The  then  existing  political  situation  in  Great  Britain 
made  it  impossible  for  the  British  Government  to  accept 
any  such  view  as  the  Congress  proposed,  of  the  powers  of 
the  King  and  the  Parliament  in  the  Empire.  The  Con- 
stitution of  Great  Britain  was  an  unwritten  Constitution, 
conceived  of,  it  is  true,  as  emanating  from  the  whole  peo- 
ple of  that  State,  and  distinguished  from  action  merely 
legislative  and  executive,  but  it  was  only  morally  the 
supreme  law  of  that  State.  A  written  Constitution, 
formed  by  a  Constitutional  Convention  of  the  people  of 
a  State  and  legally  supreme  over  all  legislative  and  ex- 
ecutive action  within  the  State,  was  yet  an  experiment. 
British   legislation    and    the    British    Constitution   were 


33^  The  Administration  of  Dependencies 

legally  one  and  the  same  thing, — that  is,  the  Acts  of  Par- 
liament were  legally  the  supreme  law  of  the  State  of 
Great  Britain, —  as  they  still  are. 

Burke,  although  he  admitted  that  there  was  a  Consti- 
tution of  the  Empire  (that  is,  a  fundamental  law  con- 
ceived of  as  emanating  directly  from  the  people  of  the 
Empire),  which  was  distinct  from  the  Constitution  and 
laws  of  Great  Britain,  and  which  it  was  the  function  of 
Great  Britain,  as  the  Imperial  State  of  the  Empire,  to 
adjudicate  and  declare,  held  that  this  power  was  to  be 
exercised  ultimately  by  the  British  Parliament.  As  the 
House  of  Commons,  by  virtue  of  its  power  to  dictate  to 
the  King  the  choice  of  the  Ministry,  was  the  ultimate 
power  in  Parliament,  this  proposition  meant  that  the 
House  of  Commons  was  to  adjudicate  and  execute  the 
Constitution  of  the  Empire — that  that  House,  and  not 
the  King,  was  the  Disposer  of  the  Empire. 

Lord  North,  while  not  admitting  that  there  was  any 
Constitution  or  laws  of  the  British  Empire  distinct  from 
the  Constitution  and  laws  of  Great  Britain,  seems  to  have 
agreed  that,  if  there  was,  Burke's  theory  was  correct. 
This  doubtless  appeared  to  him  to  be  a  logical  necessity 
from  the  proposition  (which  he  was  the  first  Prime  Min- 
ister to  admit)  that  the  House  of  Commons  had  power  to 
dictate  to  the  King  the  choice  of  the  Ministry.  If  that 
power  was  proper  to  be  exercised  by  that  House,  it  could 
only  be  because  the  House  of  Commons  was  the  ultimate 
unconditioned  and  unlimited  power  in  the  State  of  Great 
Britain,  and  was,  in  legal  contemplation,  the  people  of 
the  State  of  Great  Britain  assembled,  and  not  their  agent, 
— and  hence  was  entitled  to  control  the  King  in  the  ex- 
ercise of  all  his  functions,  even  his  judicial  functions,  his 
treaty-making  functions,  and  the  functions  which  he 
exercised  ex  officio  in  the  British  Empire.  That  the  un- 
conditional and  unlimited  power  of  the  House  of  Com- 
mons in  the  State  of  Great  Britain  appeared  to  him  to  be 


The  Final  Issue,  1 775-1 776  339 

an  insuperable  obstacle  to  the  adoption  of  the  American 
theory  of  the  conditional  and  limited  power  of  the  King 
and  the  Parliament  in  the  Empire,  as  ex  officio  represen- 
tatives and  agents  of  the  State  of  Great  Britain  acting  as 
the  Imperial  State,  was  made  evident  in  a  speech  de- 
livered by  him  in  the  House  of  Commons  on  November 
20,  1775,  in  which,  while  expressing  his  readiness  to 
accept  any  reasonable  plan  of  settlement,  he  said,  as 
reported  in  the  Parliamentary  History  : 

That  there  were  two  grounds  upon  which  every  Minister 
ought  to  stand;  the  first  was,  that  the  King  had  an  undoubted 
right  of  naming  his  own  servants;  the  second,  which  formed 
the  happiness  of  this  country,  that  if  the  people,  by  their  rep- 
resentatives, did  really  disapprove  the  measures  of  any  Minis- 
ter, to  that  degree  that  they  would  not  go  along  with  him,  the 
King,  however  he  might  approve  such  Minister,  could  not 
carry  on  business  by  him,  and  must  part  with  him. 

The  Congress  took  the  position  that  a  "Constitution  " 
of  the  Empire  which  was  not  legally  supreme  for 
Imperial  purposes  over  the  Constitution  of  Great  Britain 
was  not  a  Constitution  at  all,  but  only  special  legisla- 
tion of  the  British  Parliament,  and  hence  claimed  that 
the  Constitution  of  the  Empire  and  all  legislation  and 
action  in  execution  thereof  were,  in  the  nature  of  things, 
supreme  for  Imperial  purposes  over  the  Constitution  and 
laws  of  Great  Britain. 

From  this,  the  Congress  deduced  the  corollary  that,^ 
because  the  Constitution  and  laws  of  the  Empire  must 
necessarily  conflict  with  the  Constitution  and  laws  of  the 
State  of  Great  Britain,  and  be  supreme  in  all  cases  ia 
which  they  so  conflicted,  the  British  Parliament,  which 
was  charged  with  the  duty  of  adjudicating  and  declaring 
the  Constitution  of  Great  Britain  and  of  enacting  legisla- 
tion in  execution  thereof,  was  necessarily  disqualified 
from  adjudicating  and  declaring  the  Constitution  of  the 


340  The  Administration  of  Dependencies 

Empire,  and  that  the  King  of  Great  Britain,  as  the  Chief 
Executive  of  the  Imperial  State,  and  ex  officio  the  Chief 
Executive  of  the  Empire,  had  the  sole  power  and  duty 
of  adjudicating  and  causing  to  be  executed,  by  appropri- 
ate legislation  and  executive  action,  the  Constitution  of 
the  Empire.  For  the  purpose  of  such  executive  legisla- 
tion, they  regarded  the  British  Parliament,  within  the 
sphere  allotted  by  the  Constitution  of  the  Empire  to  the 
Chief  Legislature  of  the  Empire,  as  being  ex  officio 
the  Chief  Legislature  of  the  Empire. 

The  Congress  recognized  that  the  Constitution,  laws, 
and  customs  of  the  State  of  Great  Britain  were  in  force 
in  the  Colonies  except  to  the  extent  to  which  they  were 
rendered  inapplicable  by  the  local  circumstances  and  con- 
ditions,— as  the  Charters  of  the  respective  Colonies  pro- 
vided. The  Constitution  of  the  British  Empire  was,  as 
they  believed,  based  on  the  Constitution  of  the  State  of 
Great  Britain — that  is,  on  the  great  principles  of  justice 
and  good  government  recognized  and  declared,  at  various 
times,  and  in  various  ways,  in  the  history  of  the  English 
and  British  people ;  and  they  also  believed  that  the  laws 
and  customs  of  Great  Britain,  by  which  these  great  prin- 
ciples had  been  worked  out  in  Great  Britain,  were  to  be 
considered  as  a  guide  in  making  Imperial  dispositions, 
but  were  not  to  be  binding  on  the  Colonies  where  their 
local  circumstances  and  conditions  required  a  different 
working  out  of  these  principles. 

The  King,  from  the  British  standpoint  that  the  power 
of  the  State  of  Great  Britain  was  a  power  of  legislation, 
or  of  adjudication  of  the  terms  of  the  Constitution  of  the 
Empire  by  Parliamentary  action,  was  obliged  to  refuse 
to  receive  the  petitions  contained  in  the  two  Addresses 
of  Congress  to  him.  He  was  petitioned  as  the  Chancellor 
or  the  Disposer  of  the  Empire,  having  jurisdiction  to  en- 
join the  breach  of  the  contract  for  personal  services  be- 
tween the  State  of  Great  Britain  and  the  Colonies,  as 


The  Final  Issue,  iyjS-^77^  34i 

States.  Had  he  received  the  petitions  (or,  to  use  a  legal 
phrase,  had  he  allowed  the  petitions  to  be  filed  in  court), 
against  the  objection  of  the  opposing  party,  he  would 
have  admitted  that  he  had  jurisdiction  to  give  the  relief 
prayed  for,  and  would  have  been  in  duty  bound  to  adju- 
dicate the  questions  raised  in  the  petitions.  Upon  such 
adjudication,  it  would  have  been  the  duty  of  Parliament 
and  the  Colonial  Assemblies  to  conform  their  legislation 
to  the  decision,  and,  in  case  they  refused  to  do  so,  it  would 
have  been  the  duty  of  the  King  to  refuse  to  execute  or 
to  allow  to  be  executed  any  Acts  of  Parliament  or  of  the 
Colonial  Assemblies  inconsistent  with  the  Constitution  as 
so  adjudicated  and  declared.  This  would  have  been  for 
the  King  to  oppose  himself,  as  the  ultimate  power  in  the 
British  Empire,  to  the  House  of  Commons,  the  ultimate 
power  in  the  British  State.  Lord  North  undoubtedly 
felt  that  he  could  not  advise  the  King  to  enter  into 
such  a  struggle  with  the  House  of  Commons,  which  might 
endanger  the  peace  of  the  State  of  Great  Britain  itself. 

Such  was  the  situation  when  the  Declaration  of  Inde- 
pendence was  framed.  It  was  evident,  that,  in  stating 
the  causes  of  the  dissolution  of  the  political  relationship 
between  Great  Britain  and  the  Colonies,  the  refusal  of 
the  King  to  act  as  the  Disposer  of  the  Empire  in  adjudi- 
cating the  terms  of  the  unwritten  Constitution  of  the 
Empire  must  be  made  the  principal  cause.  Accordingly 
the  Declaration  was  framed  as  a  Bill  of  Impeachment  of 
the  then  reigning  King  of  Great  Britain  for  nonfeasance 
and  malfeasance  in  office  as  Disposer  of  the  Empire. 

Had  the  Declaration  of  Independence  been  drawn  at 
the  present  day,  when  we  are  accustomed  to  the  concep- 
tion of  the  Federal  State,  composed  of  federally-equal 
States,  and  of  the  Federal  Empire,  composed  of  an  Im- 
perial State  and  federally-subject  States,  and  of  a  "Con- 
stitution "  as  distinct  from  a  "law"  or  a  "statute,"  it 
would  have  been  drawn  as  follows: 


342  The  Administration  of  Dependencies 

First:  There  would  have  been  a  preamble,  in  which 
the  Colonies  would  have  declared  themselves  to  be  and 
to  have  always  been  States  in  a  permanent  contractual 
relationship  of  subjection  to  the  State  of  Great  Britain, 
from  whence  it  would  have  been  inferred  that  the  State 
of  Great  Britain  and  the  Colonies  constituted  a  Federal 
Empire  under  an  unwritten  Constitution,  and  that  that 
unwritten  Constitution  was  necessarily  supreme  over  the 
Constitution  of  Great  Britain  as  the  Imperial  State  for 
Imperial  purposes,  and  over  the  Constitutions  of  the 
respective  Colonies  as  Member-States;  and  that  the  inter- 
pretation of  this  unwritten  Constitution  was,  by  the  nature 
of  things,  vested  in  the  King  of  Great  Britain,  as  ex  officio 
the  Chief  Executive  of  the  Empire,  acting  through  a  suit- 
able tribunal  of  experts;  and  that  these  adjudications  were 
to  be  executed  by  the  needful  rules  and  regulations  made 
by  the  King  or  by  the  legislation  of  Parliament  acting 
within  the  sphere  of  action  of  the  Imperial  State  as  de- 
termined by  the  Constitution,  and  by  the  Colonial  Assem- 
blies, acting  within  the  spheres  of  action  of  subordinate 
Member-States,  as  so  determined  ;  and  that  the  people  of 
Great  Britain,  as  the  ultimate  source  of  all  authority  in  the 
Imperial  State,  were  ultimately  responsible  to  the  Colonies 
for  the  failure  of  the  King  to  adjudicate  and  of  the  King 
and  the  Parliament  to  execute  the  Constitution  of  the 
Empire. 

Second :  There  would  have  followed  this  preamble  a 
Bill  of  Impeachment  of  the  King,  charging  him  with  re- 
fusal to  acknowledge  himself  to  be  the  Disposer  of  the 
Empire,  charged  with  the  duty  of  ultimately  adjudicating 
and  executing  the  Constitution  of  the  Empire. 

Third  :  There  would  have  followed  this  Bill  of  Impeach- 
ment, a  Bill  of  Impeachment  of  the  People  of  Great 
Britain  for  acquiescing  in  the  King's  refusal. 

Fourth :  There  would  have  followed  these  two  Bills  of 
Impeachment  a  Declaration  of   Dissolution  of  Political 


The  Final  Issue,  1 775-1 776  343 

Copartnership  between  the  State  of  Great  Britain  and 
the  Colonies  as  States,  for  breach  of  the  Articles  of  Co- 
partnership— the  Constitution  of  the  Empire — by  the 
State  of  Great  Britain. 

An  examination  of  the  Declaration  shows  that  it  con- 
tains exactly  all  these  elements,  though  the  facts  and 
conclusions  of  the  imaginary  preamble  above  written  are 
not  contained  in  the  preamble  of  the  Declaration,  but  are 
scattered  through  it  in  various  places.  The  declaration 
of  the  federally-subject  statehood  of  the  Colonies  was 
necessarily  implied  in  the  statement  of  the  Declaration 
that  the  British  Parliament  had  attempted  "to  extend 
an  unwarrantable  jurisdiction  over  us."  Jefferson  origi- 
nally wrote  this  clause  "to  exercise  jurisdiction  over  these 
our  States."  As,  however,  the  Declaration  as  originally 
adopted  was  entitled  "A  Declaration  by  the  Representa- 
tives of  the  United  States  of  America,  in  Congress 
Assembled,"  and  was  entitled  as  engrossed,  "The 
Unanimous  Declaration  of  the  Thirteen  United  States 
of  America,"  the  word  "us"  meant  "the  Thirteen 
United  States,"  and  the  expression  "these  our  States" 
would  have  been  tautological. 

The  whole  passage  in  which  this  expression  occurred, 
as  originally  drafted  by  Jefferson,  expressed  plainly  the 
anti-Imperialist  view  of  the  political  relationship.  His 
words  were : 


Nor  have  we  been  wanting  in  attention  to  our  British  breth- 
ren. We  have  warned  them  from  time  to  time  of  attempts  of 
their  Legislature  to  extend  a  jurisdiction  over  these  our  States, 
.  .  .  We  have  reminded  them  .  ,  .  that,  in  constitut- 
ing, indeed,  our  several  forms  of  government,  we  had  adopted 
one  common  King,  thereby  laying  a  foundation  for  perpetual 
league  and  amity  with  them;  but  that  submission  to  their  Par- 
liament was  no  part  of  our  Constitution,  nor  ever  in  idea,  if 
history  may  be  credited. 


344  The  Administration  of  Dependencies 

This  was  changed  by  the  Congress  so  as  to  express  the 
Federal-Imperialist  view,  and  was  made  to  read : 

Nor  have  we  been  wanting  in  attention  to  our  British 
brethren.  We  have  warned  them  from  time  to  time  of  at- 
tempts by  their  Legislature  to  extend  an  unwarrantable  juris- 
diction over  us.  We  have  reminded  them  of  the  circumstances 
of  our  emigration  and  settlement  here. 

The  failure  of  the  preamble  to  directly  claim  that  the 
Constitution  of  the  Empire  was  legally  supreme  in  the 
Empire  was  also  supplied  by  subsequent  statements  in 
the  Declaration.  The  statement  that  the  British  Parlia- 
ment was  exercising  an  "unwarrantable  jurisdiction  "  over 
the  Colonies  inevitably  implied  a  Constitution  of  the 
Empire  supreme  over  the  Acts  of  the  British  Parliament. 
Only  by  assuming  the  existence  of  a  supreme  Consti- 
tution of  the  Empire  could  the  British  Parliament  be  re- 
garded  as  having  "jurisdiction  "  over  the  Colonies;  only 
by  this  assumption  could  the  exercise  of  power  in  cer- 
tain respects  be  regarded  as  the  exercise  of  "unwarrant- 
able jurisdiction,"  and  in  other  respects  as  the  exercise 
of  "warranted  jurisdiction."  The  Declaration  declared 
that  the  King  had  "combined  with  others  "  (referring  to 
the  two  Houses  of  Parliament  and  the  Ministry)  "to  sub- 
ject us  to  a  jurisdiction  foreign  to  our  Constitution  and 
unacknowledged  by  our  laws;  giving  his  assent  to  their 
acts  of  pretended  legislation,"  for  various  purposes  which 
were  specified.  The  characterization  of  any  Acts  of  Par- 
liament as  "acts  of  pretended  legislation  "  inevitably  im- 
plied that  Parliament  exercised  its  powers  in  the  Empire 
under  a  Constitution  which  was  the  supreme  law  of  the 
Empire.  On  that  theory,  and  on  that  theory  alone, 
could  any  Act  of  Parliament  be  called  "an  act  of  pre- 
tended legislation."  If  it  was  in  excess  of  the  powers 
granted  to  the  Imperial  State,  or  to  Parliament,  as  its  rep- 
resentative, by  the  people  of  the  Empire  assembled,  in 


The  Final  Issue,  ^']^S-^11^  345 

their  Constitution,  it  was  a  pretence  and  a  nullity  and 
not  legislation,  because  not  in  execution  of  the  supreme 
law  of  the  Empire. 

The  King  was  impeached  by  the  Declaration  for  his  re- 
fusal to  act  as  the  Disposer  of  the  Empire.  It  charged 
that  the  Colonies  had  "petitioned  "  the  King  for  "re- 
dress," and  that  he  had  not  only  refused,  but  had  done 
many  overt  acts  wholly  inconsistent  with  his  functions  as 
Disposer  of  the  Empire.  A  large  part  of  the  Declaration 
is  occupied  with  the  specification  of  these  acts  of  the 
King,  evidencing  his  refusal. 

John  Adams  objected  to  describing  King  George  III. 
in  the  Declaration  as  a  tyrant,  giving  as  his  reason  that 
he  always  believed  him  "to  be,  in  his  official  capacity 
only,  cruel." 

The  people  of  Great  Britain  were  impeached  by  the 
Declaration  because,  though  having  the  power  to  compel 
the  King  to  fulfil  his  functions  as  Disposer  of  the  Em- 
pire, they  had  acquiesced  in  his  nonfeasance  and  mis- 
feasance. 

The  Empire  was,  by  the  Declaration,  declared  to  be 
dissolved  on  the  initiative  of  Great  Britain,  and  the  inde- 
pendence of  the  Colonies,  and  their  consequent  existence 
as  States,  having  full  rights  of  sovereignty,  was  declared 
to  have  resulted  from  the  dissolution. 

Everything  in  the  original  draft  which  tended  to  show 
that  the  Colonies  based  their  right  to  independence  on  a 
claim  of  right  to  political  equality  with  Great  Britain,  or 
on  a  claim  of  right  to  secede  from  the  Union  with  Great 
Britain,  was  stricken  out,  and  words  were  inserted  by 
Congress  which  conveyed  the  idea  that  the  Colonies  had 
always  been  subordinate  Member-States  in  the  British 
Federal  Empire,  and  were  willing  and  anxious  to  remain 
such  ;  and  that  they  were  merely  acquiescing  in  the  abdi- 
cation, by  the  State  of  Great  Britain,  of  its  functions  as 
the  Imperial  State  in  the  Federal  Empire. 


34^  The  Administration  of  Dependencies 

In  the  original  draft,  the  first  sentence  began  thus: 

When  in  the  course  of  human  events  it  becomes  necessary 
for  a  people  to  advance  from  that  subordination  in  which  they 
have  hitherto  remained,  etc. 

The  change,  in  Jefferson's  handwriting,  made  it  read, 
as  it  finally  read : 

When  in  the  course  of  human  events  it  becomes  necessary 
for  one  people  to  dissolve  the  political  bands  which  have  con- 
nected them  with  another,  etc. 

For  Jefferson's  words,  "reject  and  renounce,"  as  ap- 
plied to  the  allegiance  of  the  colonists  to  the  King  of 
Great  Britain,  Congress  substituted  the  words  "are  ab- 
solved from,"  and  for  the  words  "dissolve  and  break 
off,"  as  applied  to  the  political  connection,  the  words  "is 
dissolved." 

As  Jefferson  originally  wrote  the  last  clause  of  the 
Declaration,  it  read: 

We,  therefore,  the  representatives  of  the  United  States  in 
Congress  assembled,  do  ,  .  .  reject  and  renounce  all 
allegiance  and  subjection  to  the  Kings  of  Great  Britain  and 
all  others  who  may  hereafter  claim  by,  through,  or  under  them, 
and  utterly  dissolve  and  break  off  all  political  connection  which 
may  heretofore  have  subsisted  between  us  and  the  people  or 
Parliament  of  Great  Britain,  and  finally  we  do  assert  and 
declare  these  Colonies  to  be  free  and  independent  States. 

This  language  was  rejected  by  the  Congress,  and 
they  substituted  the  following : 

We,  therefore,  the  representatives  of  the  United  States  in 
Congress  assembled  .  .  .  do  .  .  .  solemnly  publish 
and  declare,  that  these  United  Colonies  are,  and  of  right 
ought  to  be,  free  and  independent  States;  that  they  are  ab- 


The  Final  Issue,  1 775-1 776  347 

solved  from  all  allegiance  to  the  British  Crown,  and  that  all 
political  connection  between  them  and  the  State  of  Great 
Britain  is,  and  ought  to  be,  totally  dissolved. 

By  changing  Jefferson's  words  "the  political  connec- 
tion between  the  representatives  of  the  United  States  in 
Congress  assembled  and  the  people  and  Parliament  of 
Great  Britain"  to  "the  political  connection  between  these 
United  Colonies  and  the  State  of  Great  Britain, "  Con- 
gress, in  effect,  declared  that  the  British  Empire  in 
America,  as  it  had  formerly  existed,  had  been  a  Federal 
Empire. 

The  blame  for  the  whole  situation  was  placed  by  the 
Declaration  wholly  on  the  King.  He  was  recognized  as 
the  representative  of  Great  Britain  ultimately  responsible 
for  the  performance  of  its  functions  as  the  Imperial  State, 
and  he  was  declared  to  have  abdicated  his  functions,  with 
the  consent  of  the  people  of  Great  Britain ;  from  whence 
it  was  concluded  that  the  State  of  Great  Britain  had 
abdicated,  as  the  Imperial  State. 

The  Declaration  of  Independence  was,  therefore,  a 
Declaration  concerning  Dependence.  It  opposed  the 
Federal  Empire,  as  the  ideal  of  America,  to  the  Unitary 
State,  as  the  ideal  of  Great  Britain.  The  British 
Declaration  of  Unconditional  Dependence  of  1766  was 
answered  in  1776  by  an  American  Declaration  of  Federal 
Dependence.  The  Declaration  of  Independence  did  not 
announce  the  proposition  that  all  States  are  free  and 
equal.  It  merely  announced  that  all  States  are  born  free 
and  equal,  and  hence  not  only  capable  of  contracting, 
but  incapable  of  entering  into  any  relationship  which  is 
not  contractual — that  is,  federal. 

It  was  based  on  the  theory  that  States,  like  individuals, 
may  rightfully,  and,  under  some  circumstances,  ought 
voluntarily  to  enter  into  a  contract  to  submit  to  such 
judicious  leadership  and  control,  under  proper  conditions 


34^  The  Administration  of  Dependencies 

and  limitations,  of  a  State  qualified  by  its  mental  and 
physical  endowment  to  lead  and  control,  as  may  result 
in  the  general  good  of  the  States  immediately  concerned, 
and  of  the  world  at  large. 

It  is  interesting,  as  possibly  showing  how  and  when 
the  word  "  disposition  "  came  to  be  adopted  in  the 
American  public  law  to  express  the  function  of  the  Imperial 
State  in  a  Federal  Empire,  to  notice  that  in  the  Procla- 
mation of  Congress  of  June  12,  1775,  appointing 
Thursday,  July  20,  1775,  as  a  day  of  humiliation  and 
prayer,  issued  shortly  after  Lord  Chatham's  Bill  and 
Burke's  and  Hartley's  resolutions  must  have  reached 
America,  the  power  of  the  Deity  was  described  as  a 
"supreme,  universal,  and  superintending  providence," 
and  He  is  called  "the  Disposer  of  all  events." 

The  Proclamation  read  in  part : 

As  the  great  Governor  of  the  world,  by  His  supreme  and  uni- 
versal providence,  not  only  conducts  the  course  of  nature  with 
unerring  wisdom  and  rectitude,  but  frequently  influences  the 
minds  of  men  to  serve  His  wise  and  gracious  purposes  by  His 
providential  government ;  and  it  being  at  all  times  our  indispensable 
duty  devoutly  to  acknoudedge  His  superintending  providence  j  .   .   . 

This  Congress  therefore,  considering  the  present  critical, 
alarming  and  calamitous  state  of  these  Colonies,  do  earnestly 
recommend  that  Thursday,  the  20th  day  of  July  next,  be  ob- 
served by  the  inhabitants  of  all  the  English  Colonies  on  this  Conti- 
nent^ as  a  day  of  public  humiliation  and  prayer,  that  we  may 
.  .  .  offer  up  our  joint  supplications  to  the  all-wise,  omnipotent 
and  merciful  Disposer  of  all  events.  .  .  .  that  all  America 
may  soon  behold  a  gracious  interposition  of  Heaven  for  the 
redress  of  her  many  grievances,  the  restoration  of  her  invaded 
rights  \and^  a  reconciliation  tuith  the  Parent  State  on  terms  con- 
stitutional and  honorable  to  both. 

In  the  Address  to  the  People  of  Ireland  of  July  28, 
1775,  the  Deity  was  spoken  of  as  "the  Supreme  Disposer 
of  all  human  events." 


The  Final  Issue,  1 775-1 776  349 

As  William  Hooper,  of  North  Carolina,  was  chairman 
of  the  Committee  which  framed  this  Proclamation  and 
also  of  that  which  framed  this  Address,  the  honor  of 
having  restored  to  the  public  law  the  word  "dispose  "  as 
signifying  the  power  to  adjudicate  and  execute  the  judg- 
ment, seems  to  belong  to  him. 

The  final  issue  between  Great  Britain  and  the  Colonies 
was,  therefore,  generally,  whether  or  not  the  British 
Empire  was  a  Federal  Empire,  and  specifically  whether 
or  not  there  was  a  Constitution  of  the  British  Empire, 
and  a  law  of  the  British  Empire  in  execution  thereof, 
which  were  supreme,  for  Imperial  purposes,  over  the  Con- 
stitutions and  laws  of  the  Imperial  State  and  of  all  its 
dependencies. 

The  Colonies  claimed  that  there  was  such  an  Imperial 
Constitution,  and,  as  it  was  unwritten,  they  claimed  that 
it  necessarily  followed  as  a  corollary,  that  it  was  to  be 
adjudicated  and  declared  by  the  King  of  Great  Britain, 
as  ex  officio  the  Supreme  Disposer  of  the  Empire,  and 
was  also  to  be  executed  by  him,  in  the  same  capacity,  by 
means  of  rules  and  regulations  made  by  him  and  admin- 
istrative acts  done  by  and  under  him;  and  that  the  Brit- 
ish Parliament,  as  ex  officio  the  Chief  Legislature  of  the 
Empire,  had  also  the  power,  within  the  sphere  allotted  to 
it  by  the  Constitution  as  so  adjudicated  and  declared,  to 
make  rules  and  regulations,  in  the  form  of  statutes,  in 
execution  of  the  Constitution. 

As  Great  Britain  did  not  admit  that  the  British  Empire 
was  a  Federal  Empire,  and  hence  did  not  admit  that 
there  was  a  Constitution  of  the  Empire  supreme,  for 
Imperial  purposes,  over  the  Constitution  of  Great  Britain, 
it  did  not  admit  the  corollary. 


CHAPTER   XIX 

THE  AMERICAN   EMPIRE   PLANNED,    I776 

WHEN  it  is  recalled  that  it  was  Franklin  who 
made  the  first  draft  of  Articles  of  Confederation 
which  was  considered  by  the  Congress,  it  is  not 
surprising  to  find  that  it  contained  provisions  establish- 
ing an  American  Empire,  in  which  the  American  Con- 
federation was  to  be  the  Imperial  State.  It  was  Franklin 
who  made  the  original  draft  of  the  Plan  of  Union,  which, 
as  has  been  already  noticed,  provided  for  the  establish- 
ment of  an  American  Empire  much  more  completely  and 
distinctly  than  it  did  for  the  establishment  of  an  Ameri- 
can State.  He  was  the  foremost  expansionist  of  his 
times.  He  published  a  Plan  for  Settling  Two  Colonies 
West  of  the  Allegheny  Mountains,  in  1757,  and  by  his 
Canada  Pamphlet  in  1762  saved  Canada  to  Great  Britain, 
when  men  of  experience  and  influence  in  England, 
alarmed  by  the  spirit  of  expansion  in  America  shown  by 
the  Plan  of  Union,  were  advising  that  it  should  be 
yielded  back  to  France  in  return  for  the  diminutive,  but 
highly  cultivated  and  productive  island  of  Guadaloupe. 

In  this  first  draft,  presented  to  Congress  on  August  20, 
1775,  Franklin  inserted  Articles  securing  to  the  Indian 
tribes  the  rights  of  uncivilized  States  dependent  on  the 
Confederation,  and  providing  for  the  "planting  of  new 
colonies,  when  proper,"  by  the  Confederation.  By  an- 
other Article,  which  showed  his  remarkable  faith  in  the 
possibility  of  the  unlimited  extension  of  a  Confederation 
of  States  acting  by  a  Congress  of  elected  delegates,  he 
provided  for  receiving  into  the  Confederation,  not  only 
all  the  other  British  Colonies  on  the  American  Continent 

350 


The  American  Empire  Planned,  1776    351 

(Quebec, — then  including  Canada  and  the  Northwest 
Territory, — St.  John's  and  Nova  Scotia,  East  and  West 
Florida),  but  also  the  West  Indies,  the  Bermudas,  and 
even  Ireland ! 

The  Articles  of  this  draft  on  these  subjects  read : 

Article  XI.  A  perpetual  alliance,  offensive  and  defensive,  is 
to  be  entered  into  as  soon  as  may  be  with  the  Six  Nations; 
their  limits  to  be  ascertained  and  secured  to  them;  their  land 
not  to  be  encroached  on,  nor  any  private  or  Colony  purchases 
made  of  them  hereafter  to  be  held  good;  nor  any  contract  for 
lands  to  be  made,  but  between  the  Great  Council  of  the  In- 
dians at  Onondaga  and  the  general  Congress,  The  boundaries 
and  lands  of  all  other  Indians  shall  also  be  ascertained  and 
secured  to  them  in  the  same  manner,  and  persons  appointed 
to  reside  among  them  in  proper  districts;  and  shall  take  care 
to  prevent  injustice  in  the  trade  with  them;  and  be  enabled 
at  our  general  expense,  by  occasional  small  supplies,  to  relieve 
their  personal  wants  and  distresses.  And  all  purchases  from 
them  shall  be  by  the  Congress^  for  the  general  advantage  and 
benefit  of  the  United  Colonies. 

Article  V.  That  the  power  and  duty  of  the  Congress  shall 
extend  to  .  .  .  the  settling  all  disputes  and  differences 
between  Colony  and  Colony,  about  limits  or  any  other  cause,  if 
such  should  arise,  and  the  plantitig  of  new  colonies  when  proper. 
The  Congress  shall  also  make  such  general  ordinances  as, 
though  necessary  to  the  general  welfare,  particular  assemblies 
cannot  be  competent  to,  viz.,  those  that  may  relate  to  our 
general  commerce,  or  general  currency;  the  establishment  of 
posts;  and  the  regulation  of  our  common  forces.      .     . 

Article  XIV.  Any  and  every  Colony  from  Great  Britain 
upon  the  Continent  of  North  America  not  at  present  engaged 
in  our  Association,  may,  upon  application  and  joining  the  said 
Association,  be  received  into  the  Confederation,  viz.,  Ireland, 
the  West  India  Islands,  Quebec,  St.  John's,  Nova  Scotia,  the 
Bermudas,  and  the  East  and  West  Floridas;  and  shall  there- 
upon be  entitled  to  all  the  advantages  of  our  Union,  mutual 
assistance  and  commerce. 


352  The  Administration  of  Dependencies 

The  draft  of  Articles  of  Confederation  reported  on 
July  12,  1776,  by  the  committee  appointed  by  Congress 
for  the  purpose,  consisting  of  one  member  from  each 
State,  was,  as  we  are  told  by  Madison,  and  as  the  Secret 
Journals  state,  written  by  Dickinson.  It  contained  full 
and  carefully  drawn  provisions  intended  to  cover  all  the 
problems  which  then  confronted  the  United  States,  grow- 
ing out  of  their  relations  with  external  communities  sub- 
ject to  their  control.     These  provisions  were  as  follows : 

Article  XIV.  No  purchases  of  lands,  hereafter  to  be  made 
of  the  Indians,  by  Colonies  or  private  persons,  before  the 
limits  of  the  Colonies  are  ascertained,  to  be  valid.  All  purchases 
of  lands  not  included  within  those  limits,  when  ascertained,  to  be 
made  by  contracts  between  the  United  States  assembled,  or  by  per- 
sons for  that  purpose  authorized  by  them,  and  the  Great  Councils 
of  the  Indians,  for  the  general  benefit  of  all  the  United  Colonies. 

Article  XVIII.  The  United  States  assembled  shall  have  the 
sole  and  exclusive  right  and  power  of  .  .  .  Regulating 
the  trade,  and  managing  all  affairs  with  the  Indians:  Limiting 
the  bounds  of  those  Colonies  which,  by  Charter  or  Proclama- 
tion, or  under  any  pretence,  are  said  to  extend  to  the  South 
Sea;  and  ascertaining  the  bounds  of  any  other  Colony  that 
appear  to  be  indeterminate:  Assigning  territories  for  new 
colonies  j  either  in  lands  to  be  separated  from  Colonies  and  hereto- 
fore purchased  or  obtained  by  the  Crown  of  Great  Britain  from 
the  Indians,  or  hereafter  to  be  purchased  or  obtained  from  them  : 
Disposing  of  all  such  lands  for  the  general  benefit  of  all  the 
United  Colonies :  Ascertaining  boundaries  in  such  new  colonies 
within  which  forms  of  government  are  to  be  established  on  the 
principles  of  liberty. 

Article  XX.  Canada,  acceding  to  this  Confederation,  and 
entirely  joining  in  the  measures  of  the  United  Colonies,  shall 
be  admitted  into,  and  entitled  to  all  the  advantages  of  the 
Union.  But  no  other  Colony  shall  be  admitted  into  the  same 
unless  such  admission  be  agreed  to  by  the  delegates  of  mne 
Colonies. 


The  American  Empire  Planned,  1776    353 

In  order  to  appreciate  the  significance  of  these  words, 
it  is  necessary  to  understand  the  situation  which  existed 
at  the  time  between  "the  United  States  assembled  " 
and  the  regions  which  were  in  fact  or  in  expectation 
under  its  control. 

The  five  matters  to  be  decided  in  the  government  of 
these  regions  were: 

First. — The  arrangements  which  were  to  be  made  with 
the  Indian  tribes.  These  tribes  at  the  outbreak  of  the 
Revolution  were,  by  treaty,  under  the  protection  of  the 
State  of  Great  Britain,  but  the  protectorate  was  of  that 
peculiar  kind  which  is  now  described  as  a  "protectorate 
over  uncivilized  regions"  or  a  "constitutional  protector- 
ate"— that  is,  a  political  relationship  between  a  State  and 
an  external  community  of  so  low  a  degree  of  civilization 
as  to  be  unfitted  for  any  form  of  government  except  a 
tribal  form,  under  which  the  minor  community  is  per- 
mitted to  keep  the  form  and  ceremony  of  a  half-sovereign 
State,  while  the  dominant  State  has,  in  fact,  the  powers 
over  the  minor  community  which  it  would  have  if  that 
community  were  a  dependency  of  itself  as  an  Imperial 
State — which  powers,  however,  it  refrains  from  exercis- 
ing except  upon  emergency.  This  relationship  is  allowed 
to  exist  by  the  dominant  State  in  order  to  carry  on  the 
government  of  the  minor  community  with  the  least  friction 
possible,  until  it  arrives  at  a  point  of  development  where 
it  can  either  be  converted  into  a  true  dependency,  or 
where  its  land  and  population  can  be  incorporated  with 
those  of  the  dominant  State. 

Second. — The  arrangements  to  be  made  with  the  Land 
Companies.  The  Vandalia  Company,  which  Franklin 
had  promoted,  claimed  two  million  five  hundred  acres 
just  west  of  the  Allegheny  Mountains  northeast  of  Vir- 
ginia, by  grant  from  the  British  Crown.  A  charter  had 
been  prepared,  giving  powers  to  the  company  as  a  colo- 
nizing company,  which  was  ready  except  for  the  affixing 


354  The  Administration  of  Dependencies 

of  the  seals  when  the  war  broke  out.  Many  Englishmen 
were  interested  in  the  company.  The  Ohio  and  Indiana 
Companies,  which  had  been  promoted  by  Arthur  Lee 
and  Samuel  Wharton,  claimed  lands  in  the  same  region, 
under  grants  from  Virginia  and  from  the  Indian  tribes, 
which  had  been  recognized  by  the  Crown  and  merged  in 
the  grant  to  the  Vandalia  Company.  The  Illinois  Com- 
pany and  the  Wabash  Company  claimed  large  and  inde- 
terminate amounts  of  land  on  the  Illinois  and  Wabash 
Rivers,  by  grant  from  the  Indians.  These  Land  Com- 
panies were  inchoate  colonies — "  new  colonies." 

Third. — The  arrangements  to  be  made  for  the  part  of 
the  North  American  Continent  which  was  dependent  on 
the  State  of  Great  Britain  at  the  outbreak  of  the  Revo- 
lution, not  included  within  the  limits  of  any  Colony  or 
Land  Company.  These  lands  were ' '  lands  to  be  separated 
from  Colonies  and  heretofore  purchased  or  obtained  by 
the  Crown  of  Great  Britain  from  the  Indians,  or  hereafter 
to  be  purchased  or  obtained  from  them," 

The  charter-limits  of  some  of  the  thirteen  Colonies  ex- 
tended to  "the  South  Sea,"  that  is,  to  the  Pacific  Ocean ; 
but  the  British  Government,  by  the  Proclamation  of  the 
King  in  Council  of  1763  (issued  soon  after  the  Treaty  of 
1763,  which  fixed  the  western  boundary  of  the  British 
possessions  in  America  at  the  Mississippi  River)  had 
claimed  that  those  provisions  of  the  Charters  which  made 
the  South  Sea  the  western  boundary  were  rescinded,  and 
by  that  Proclamation  had,  by  forbidding  grants  of  land 
by  the  Colonies  beyond  the  ridge  of  the  Allegheny  and 
Appalachian  Mountains,  practically  fixed  the  western 
boundaries  of  these  Colonies  along  the  ridge  of  those 
mountains.  These  Colonies  had,  however,  prior  to  the 
Proclamation  of  1763,  in  fact  "appropriated"  land  be- 
yond the  ridge  of  the  mountains  by  including  it  within 
the  boundaries  of  their  counties  and  other  municipalities. 
Virginia,  in  its  Constitution  adopted  June  29,  1776,  made 


The  American  Empire  Planned,  1776    355 

an  express  claim  to  jurisdiction,  as  the  Imperial  State  of 
an  Empire,  westward  of  the  mountains  to  the  Missis- 
sippi River,  by  declaring  that  its  western  boundary 
should  be  as  fixed  by  the  Virginia  Charter  of  1609  and 
the  Treaty  of  1763  "unless,  by  Act  of  the  Legislature 
[of  Virginia],  one  or  more  Governments  be  established 
westward  of  the  Allegheny  Mountains."  By  Dickinson's 
draft  of  the  Articles  of  Confederation,  Congress  was  to 
be  given  the  power,  which  the  King  in  Council  had 
claimed,  of  "limiting  the  bounds"  of  the  Colonies  which 
claimed  to  the  South  Sea,  and  of  "separating  from"  them 
the  lands  westward  of  the  bounds  so  limited.  The  lands 
thus  to  be  "separated  from  Colonies"  constituted  an 
enormous  region  extending  from  the  Mississippi  River  on 
the  west  to  the  ridge  of  the  Allegheny  and  Appalachian 
Mountains  on  the  east,  and  from  near  the  Gulf  of  Mexico 
on  the  south  to  the  present  northern  boundary  of  the 
United  States.  It  was  realized  by  the  Congress  from  the 
outset  that  if  this  region  should  be  brought  into  a  state 
of  dependence  on  any  European  Power,  it  would  be  a 
menace  to  the  existence  of  the  Confederation,  and  if  it 
should  be  kept  permanently  in  dependence  on  the  Con- 
federation, or  on  a  State  or  States  of  the  Confederation, 
it  would  raise  problems  in  government  of  the  most  serious 
kind.  That  it  must,  however,  be  held  in  a  state  of  de- 
pendence during  its  settlement  was  evident.  The  proper 
provision  to  be  made  in  the  Articles  of  Confederation 
regarding  this  region  was  necessarily  the  most  difficult 
matter  to  be  decided  in  the  framing  of  the  Articles. 

The  theory  of  Dickinson's  draft  was  that  this  region 
belonged  to  the  United  States  by  manifest  destiny  and 
anticipated  conquest,  or  by  the  Indian  treaties.  It  did 
not  claim  the  region  under  the  Charters  of  the  Colonies. 
The  expression  was:  "Limiting  the  bounds  of  those 
Colonies  which,  by  Charter  or  Proclamation,  or  under  any 
pretence,  are  said  to  extend  to  the  South  Sea" — the  claims 


356  The  Administration  of  Dependencies 

under  the  Charters  of  the  Colonies  being  thus  treated  as 
without  foundation.  The  treaties  with  the  Six  Nations, 
by  which  they  placed  themselves  under  the  protection  of 
Great  Britain,  had  been  made  with  the  King  of  Great 
Britain,  but  the  United  Colonies  had  been  a  party  to 
these  treaties,  and  the  Committee  of  Thirteen  seem  to 
have  treated  the  King  as  acting  for  the  benefit  of  the 
United  Colonies  in  making  them. 

Fourth. — The  arrangements  to  be  made  in  the  case  of 
Vermont,  which  had  separated  itself  from  New  York, 
New  Hampshire,  and  Massachusetts.  On  July  8,  1777, 
a  Convention  in  Vermont  adopted  a  Constitution  forming 
a  permanent  Government  "on  the  principles  of  liberty," 
which  placed  Vermont  under  the  "direction"  of  Con- 
gress. The  clauses  relating  to  this  subject  were  as  fol- 
lows : 

It  is  absolutely  necessary,  for  the  welfare  and  safety  of  the 
inhabitants  of  this  State,  that  it  should  be,  henceforth,  a  free 
and  independent  State;  and  that  a  just,  permanent,  and 
proper  form  of  government  should  exist  in  it,  derived  from, 
and  founded  on,  the  authority  of  the  people  only,  agreeable 
to  the  direction  of  the  honorable  American  Congress. 

The  people  of  this  State  have  the  sole,  exclusive,  and 
inherent  right  of  governing  and  regulating  the  internal  police 
of  the  same. 

Vermont  was  "  a  new  colony  within  which  forms  of 
government  are  to  be  established  on  the  principles  of 
liberty."  Doubtless,  also,  the  Kentucky  and  Maine  dis- 
tricts were  regarded  as  falling  within  this  description. 

Fifth. — The  arrangements  which  were  to  be  made 
with  the  British  and  French  settlements  on  the  North 
American  Continent  and  in  the  Bermudas  and  the  West 
Indies,  in  case  they  should  come  to  the  United  States  as 
conquests  resulting  from  the  war,  and  with  the  Colonies 
in  the  Western  region  when  they  should  have  advanced 


The  American  Empire  Planned,  1776    357 

to  a  stage  which  entitled  them  to  admission  into  the 
Union.  These  settlements  were  included  under  the  de- 
scription "Canada  "  and  "  any  other  Colony  "  not  in  the 
Union. 

Article  XVIII.  of  Dickinson's  draft  took  up  the  first 
four  problems  in  order. 

First. — With  respect  to  the  Indian  tribes,  "the  United 
States  assembled,"  as  the  Imperial  State,  was  to  have  the 
sole  and  exclusive  right  and  power  of  regulating  the  trade 
and  managing  all  affairs  with  them.  These  were  exactly 
the  powers  that  had  been  exercised  over  them  by  the 
State  of  Great  Britain,  through  the  King  in  Council.  The 
regulations  of  the  King  in  Council  had  extended  only  to 
the  actions  of  white  men  with  the  Indians.  The  British 
Government  had  never  attempted  to  regulate  the  dealings 
of  Indians  with  white  men,  but  had  held  the  whole  tribe 
responsible  for  the  acts  of  each  individual  Indian.  It  had 
never  regarded  the  agreements  made  with  the  Indian 
tribes  as  strictly  treaties,  but  rather  as  fictitious  treaties 
resembling  actual  treaties  to  the  same  extent  as  the  In- 
dian tribes  resembled  States.  Such  treaties  were  properly 
described  as  "affairs  with"  the  Indians,  which  "the 
United  States  assembled"  was  "to  manage  "  as  the  State 
of  Great  Britain  had  previously  managed  them. 

In  this  specification  of  the  powers  of  Congress  over  the 
Indian  tribes,  there  was  necessarily  implied  a  recognition 
of  the  statehood  of  these  tribes  and  of  their  federal  union 
with  "the  United  States  assembled,"  as  the  Imperial 
State,  in  a  relationship  of  subordination,  each  agreeing 
to  isolate  itself  from  the  other  because  the  two  popula- 
tions were  on  such  different  planes  of  civilization  that 
free  trade  and  intercourse  would  be  harmful  to  both,  and 
particularly  to  the  weaker  party. 

The  principle  upon  which  this  treatment  of  the  Indian 
tribes  was  justified  was  the  general  principle,  which  the 
American  Colonies  had  admitted  throughout  their  contest 


35^  The  Administration  of  Dependencies 

with  Great  Britain,  that  the  Imperial  State  had  the 
right,  in  its  disposition  of  the  affairs  of  the  Empire,  to 
isolate  its  dependent  States  from  itself  and  from  each 
other,  by  restrictions  on  trade  and  intercourse,  to  the  ex- 
tent necessary  for  the  good  of  the  States  of  the  Empire 
immediately  concerned,  of  the  whole  Empire,  and  of  the 
world  at  large. 

Second. — With  respect  to  the  Land  Companies  de- 
scribed as  "new  colonies,"  "the  United  States  as- 
sembled," as  the  Imperial  State,  was  given  the  sole  and 
exclusive  right  and  power  of  "  assigning  territories  "  for 
them.  This  was  a  power  which  had  been  exercised  by 
the  State  of  Great  Britain,  through  the  King  in  Council. 
As  so  many  British  citizens  were  interested  in  the  In- 
diana and  Vandalia  Companies,  it  was  evidently  thought 
proper  (as  was  afterwards  actually  recommended  by  the 
committee  of  Congress  on  the  subject)  that  the  grants 
should  be  cut  down  so  as  to  be  proportioned  in  size  to 
the  proportion  of  the  interest  of  American  citizens.  The 
Indian  grants  to  the  Illinois  and  Wabash  Companies  were 
so  indeterminate  that  they  could  not  properly  be  recog- 
nized. For  fear,  therefore,  lest  the  general  provision 
giving  governmental  power  over  the  region  might  operate 
as  a  recognition  of  the  validity  of  these  grants  in  full,  it 
was  evidently  thought  necessary  to  give  this  special  power. 

By  describing  the  power  of  "the  United  States  as- 
sembled "  over  the  Land  Companies  as  a  power  of  "as- 
signing territories  "  for  them,  their  dependent  statehood 
was  recognized — the  word  "territories  "  being  applicable 
solely  to  lands  over  which  a  State  exercises  its  govern- 
mental power. 

Third. — With  respect  to  the  parts  of  the  American 
continent  claimed  by  the  United  States,  which  were 
occupied  by  the  Indians  or  which  had  been  bought  from 
them  by  the  State  of  Great  Britain  and  not  yet  appro- 
priated to  settlement, — which,  as  has  been  seen,  included 


The  American  Empire  Planned,  1776    359 

the  whole  of  the  unsettled  parts  of  North  America  east 
of  the  Mississippi  and  northward  to  the  Canadian  frontier, 
— the  provision  was  as  follows: 

The  United  States  assembled  shall  have  the  sole  and  exclu- 
sive right  and  power  of  .  ,  .  disposing  of  all  .  .  . 
lands  [to  be  separated  from  Colonies  and  heretofore  purchased 
or  obtained  by  the  Crown  of  Great  Britain  from  the  Indians, 
or  hereafter  to  be  purchased  or  obtained  from  them],  for  the 
general  benefit  of  all  the  United  Colonies. 

The  addition  of  the  words  **  for  the  general  benefit  of 
all  the  United  Colonies"  was  necessary  from  the  fact  that 
a  large  part  of  this  region  was  claimed  by  particular  States 
of  the  Union.  Had  this  not  been  the  case  doubtless  the 
expression  "disposing  of  all  lands"  would  have  been 
left  unqualified. 

The  region  thus  described  as  that  which  "the  United 
States  assembled  "  should  have  the  power  to  "dispose 
of  "  was  exactly  the  region  which  the  American  Colonies 
had  regarded  as  within  their  Empire  ever  since  1750. 
According  to  the  Plan  of  Union  of  1754,  it  was  to  be 
colonized  by  them,  not  by  Great  Britain.  The  prohibi- 
tion by  Great  Britain  of  their  colonization  of  the  region, 
initiated  by  the  Proclamation  of  1763  and  consummated 
by  the  Quebec  Act  of  1774,  was  a  common  grievance  of 
the  Colonies  which  did  more  to  unite  them  in  opposition 
to  Great  Britain  than  any  other  infringement  of  what  they 
believed  to  be  their  rights  as  Member-States  of  the  Brit- 
ish Empire.  The  words  which  the  Congress  should  adopt 
to  express  the  power  of  "the  United  States  assembled,"  as 
the  Imperial  State  of  the  American  Empire,  over  this  re- 
gion, had  to  be  chosen  with  the  greatest  care,  in  order 
that  Great  Britain  might  not  charge  the  United  Colonies 
before  the  whole  world  with  bad  faith  in  their  protesta- 
tions of  a  desire  to  continue  parts  of  the  British  Empire 
as  a  Federal  Empire.     Had  the  words  "the    power  of 


360  The  Administration  of  Dependencies 

governing  "  or  "  the  power  of  legislating  for  "  the  "Western 
lands  been  used,  the  United  Colonies,  as  United  States, 
would  have  placed  themselves  before  the  whole  world 
in  a  most  disagreeable  light.  After  claiming  that  they 
declared  themselves  independent  on  the  sole  ground  that 
Great  Britain  had  wrongfully  claimed  that  its  Central 
Government  had  unconditional  and  unlimited  power  in 
the  British  Empire,  they  would  have  immediately  created 
an  American  Empire  in  which  the  Central  Government 
of  the  American  Confederation  had  unconditional  and 
unlimited  power,  and  their  subsequent  action  would  have 
belied  their  former. 

The  power  of  the  King  in  his  official  capacity — that  is, 
of  the  King  in  Council — over  the  Western  region  was 
described  in  the  Annual  Register  of  1763,  in  the  passage 
heretofore  quoted,  as  a  power  of  "disposition."  The 
power  which  the  King  exercised  over  "colonies  and  con- 
quests "  had  been  described  by  Attorney-General  Thur- 
low,  in  the  case  of  Campbell  v.  Hall,  as  a  power  "of 
disposition  of  the  laws  and  property  "  of  the  country, 
and  the  Court  in  that  case  had  held  that  this  power  of  the 
King  over  conquests  was  conditioned  and  limited  exactly 
as  the  Americans  claimed  that  the  power  of  the  State  of 
Great  Britain  over  the  American  Colonies  ought  to  be. 

The  power  which  the  King,  as  the  representative  of  the 
State  of  Great  Britain,  exercised  over  the  American 
Colonies  had  been  regarded  by  the  Congress,  in  the  Dec- 
laration of  Independence,  and  the  proceedings  leading  up 
to  it,  as  a  power  to  adjudicate  and  execute  the  unwritten 
Constitution  of  the  Empire,  which  was  exactly  a  power 
to  "dispose  of"  the  affairs  of  the  Empire.  The  King, 
in  the  exercise  of  these  functions,  was  regarded  by  the 
Colonies  as  ex  officio  the  Chief  Executive  of  the  Empire 
because  actually  the  Chief  Executive  of  the  State  of 
Great  Britain.  Nothing  was  more  natural  than  that  the 
Congress,  which  was  the  Chief  Executive  of  the  Confed- 


The  American  Empire  Planned,  1776    361 

eration,  should  be  given  the  same  powers  in  the  Ameri- 
can Empire  that  the  King  of  Great  Britain  would  have 
exercised  in  the  British  Empire  had  he  actually  per- 
formed in  that  Empire  the  functions  which  the  Colonies 
considered  it  his  duty  to  perform.  By  such  a  grant  of 
powers  the  American  Confederation  would  have  been 
recognized  as  the  Imperial  State  of  an  American  Federal 
Empire,  exercising  its  powers  through  the  Congress  as  its 
Chief  Executive.  The  functions  of  the  Congress  would 
have  been  to  adjudicate  and  execute  the  Constitution  of 
the  American  Federal  Empire — a  Constitution  founded 
on  the  Constitution  of  the  Confederation,  but  which  dif- 
fered from  it  to  the  extent  that  the  local  circumstances 
and  conditions  of  the  dependent  States  in  the  Western 
region  might  require. 

The  coupling  of  the  word  "lands  "  with  the  expression 
"dispose  of  "  did  not  confine  the  power  of  "the  United 
States  assembled  "  to  merely  making  dispositions  of  the 
soil.  Lands  owned  by  the  State  differ  from  lands  owned 
by  a  private  individual.  The  latter  owns  only  the 
"property"  in  the  lands;  the  State  owns  both  the 
"property"  and  the  "jurisdiction."  The  power  of 
the  State  to  dispose  of  lands  owned  by  it,  is,  therefore, 
both  a  right  to  dispose  of  the  soil  of  the  lands — of  the 
right  of  property  in  them — and  to  dispose  of  the  juris- 
diction over  them. 

Considering,  therefore,  the  immense  significance  that 
the  expression  used  to  describe  the  power  of  the  United 
States  over  the  Western  region  had ;  considering,  also, 
that  the  draft  of  Articles  of  Confederation  in  which  the 
power  of  the  United  States  was  defined  to  be  a  power 
"to  dispose  of  the  lands  "  in  this  region,  was  written  by 
Dickinson,  who  was  the  originator  of  the  conception  of 
the  Federal  Empire;  considering,  also,  that  the  expres- 
sion "to  dispose  of  "  was  the  only  expression  in  the  Eng- 
lish language  which  exactly  expressed  the  character  and 


3^2  The  Administration  of  Dependencies 

extent  of  the  powers  of  the  Imperial  State  in  a  Federal 
Empire,  and  that  it  was  consecrated  by  a  usage  of  more 
than  a  century  and  a  half  to  express  exactly  a  govern- 
mental power  of  this  kind,  it  seems  there  can  be  no  doubt 
but  that  the  intention  of  the  Committee  of  Thirteen  was 
to  declare  to  all  the  world,  by  the  use  of  this  expression, 
that  the  American  Empire,  which  they  were  establishing 
over  the  Western  region,  should  forever  be  and  remain  a 
Federal  Empire,  in  which  "the  United  States  assembled" 
should  be  the  Imperial  State. 

Anticipating  the  narrative  somewhat,  it  is  perhaps 
proper  here  to  notice  a  somewhat  striking  corroboration 
of  the  interpretation  which  has  here  been  placed  upon 
the  expression  "to  dispose  of,"  as  describing  the  power 
of  "the  United  States  assembled"  over  the  lands  to  be 
acquired  from  the  Indians  in  the  Western  region,  by  one 
who  would  naturally  have  been  careful  not  to  extend  the 
proper  meaning  of  the  word — Thomas  Jefferson.  In  a 
letter  to  James  Monroe,  of  July  9,  1786,  Jefferson  said, 
speaking  of  the  plan  for  the  government  of  the  North- 
west Territory : 

With  respect  to  the  new  States,  were  the  question  to  stand 
simply  in  this  form,  Hoiv  may  the  ultramontane  territory  be 
disposed  of  ,  so  as  to  produce  the  greatest  and  most  immediate 
benefit  to  the  inhabitants  of  the  maritime  States  of  the  Union, 
the  plan  would  be  more  plausible,  0/  laying  it  off  into  two  or 
three  States  only. 

Fourth. — With  respect  to  the  Vermont,  Kentucky, 
and  Maine  districts,  "the  United  States  assembled  "  was 
given  power  to  "ascertain  "  their  "boundaries."  The 
special  difficulty  with  these  cases  was  the  ascertainment 
of  boundaries.  The  question  of  the  boundaries  of  Ver- 
mont had  already  become  a  pressing  one.  The  States  of 
New  York,  New  Hampshire,  and  Massachusetts  claimed, 
first,  that  Vermont  had  no  existence  as  a  distinct  Govern- 


The  American  Empire  Planned,  1776    363 

ment  for  any  purpose,  and,  secondly,  that,  if  it  had,  the 
boundaries  claimed  by  it  were  unreasonable.  The  same 
difficulty  existed  with  respect  to  the  Kentucky  and  Maine 
districts,  though  to  a  lesser  degree,  since  they  were  not 
so  nearly  surrounded  by  the  existing  States.  This 
clause,  if  it  had  been  adopted,  would  have  recognized 
Vermont  as  a  colony  of  the  United  States  by  describing 
it  under  the  designation  of  "new  colonies  within  which 
forms  of  government  are  to  be  established  on  principles 
of  liberty." 

There  was  contained  in  the  expression  "ascertaining 
boundaries  "  a  recognition  of  the  personality  and  de- 
pendent statehood  of  such  "colonies."  This  expression 
was  exactly  the  same  as  would  have  been  used  in  a  suit 
between  individuals  where  boundaries  of  lands  were  in 
dispute.  A  State  "alters"  the  boundaries  of  its  munici- 
palities. An  international  tribunal  or  an  Imperial  State 
"ascertains  "  the  boundaries  of  States. 

Fifth. — With  respect  to  the  British  and  French  settle- 
ments on  the  North  American  Continent  and  in  the  Ber- 
mudas and  West  Indies,  and  with  respect  to  the  colonies 
of  the  United  States  in  the  Western  region,  the  States 
of  the  Union — not  "the  United  States  assembled  " — 
were  recognized  as  having  the  power  to  "admit  into  the 
Union,"  by  a  vote  of  nine  out  of  thirteen.  The  case 
was  met  by  Article  XX.  of  Dickinson's  draft,  which, 
while  allowing  Canada  to  enter  the  Union  "on  joining  in 
the  measures"  of  the  States  of  the  Union,  provided  that 
"no  other  Colony  shall  be  admitted  into  the  Union,  unless 
such  admission  be  agreed  to  by  the  delegates  from  nine 
Colonies." 

"Admission  into  the  Union  "  meant  admission  to  rep- 
resentation in  the  Congress.  Thus  this  Article  related  to 
an  entirely  different  subject  from  the  two  preceding  Ar- 
ticles. The  "disposing  of"  the  Western  region,  the 
"regulating  of  commerce  and  managing  all  affairs  with  " 


364  The  Administration  of  Dependencies 

the  Indian  tribes,  the  "assigning  territories  "  for  coloniz- 
ing companies,  the  "ascertaining  boundaries"  for  exist- 
ing Colonies  which  had  placed  themselves  under  the 
protection  of  the  Union,  implied  administration  by  the 
American  Union,  as  the  Imperial  State,  of  States  ex- 
ternal to  itself  and  forming  with  it  a  Federal  Empire 
under  an  unwritten  Constitution,  of  which  Empire  the 
Congress  was  the  Chief  Executive  with  such  Chief-Legis- 
lative powers  as  were  necessary  to  execute  the  Constitu- 
tion of  the  Empire.  Admission  of  Colonies  into  the 
Union  meant  an  incorporation  of  them,  as  States,  into 
the  body  and  personality  of  the  Union,  so  that  they  were 
represented  by  elected  delegates  in  the  Congress  of  the 
Union.  The  representation  of  Colonies  admitted  to  the 
Union  as  States  might,  however,  be  unequal,  as  com- 
pared to  the  representation  of  the  States  originally  in 
the  Union,  and  thus  a  relationship  between  the  original 
Union  and  the  Colonies  admitted  on  such  unequal  terms 
(called  an  unequal  Union)  might  be  formed  which  would, 
in  many  respects,  resemble  a  relationship  of  dependency. 

The  condition  of  affairs  between  the  United  States 
and  Canada  at  that  time  throws  considerable  light  on 
this  Article.     The  situation  was  briefly  this : 

Among  the  many  "  Addresses  "  issued  by  the  Conti- 
nental Congress  was  one  to  "  the  People  of  Canada," 
urging  them  to  join  the  Confederation.  In  the  early 
part  of  1776,  Franklin,  Charles  Carroll,  and  Samuel  Chase 
(the  two  latter  from  Maryland),  accompanied  by  Rev. 
John  Carroll,  a  Jesuit  priest  from  Maryland  (afterwards 
Bishop  of  Baltimore),  went  to  Canada,  as  Commissioners 
from  Congress,  to  induce  it  to  form  a  revolutionary  Gov- 
ernment and  to  join  the  Confederation.  Their  Instruc- 
tions, given  by  Congress,  permitted  them  to  sign  an 
agreement  admitting  Canada  to  the  Union  on  the  same 
terms  as  the  other  Colonies,  and  required  them,  in  case  it 
refused  to  come  into  the  Union  on  these  terms,  to  report 


The  American  Empire  Planned,  1776    365 

any  propositions  which  it  might  make  for  entering  the 
Union  on  other  terms.  The  various  "Addresses  "  issued 
by  the  Congress  were  drawn  by  different  hands,  and,  as 
it  so  happened,  the  Roman  CathoHc  reh'gion  was  bitterly 
attacked  in  all  of  them  except  the  one  to  the  people  of 
Canada,  h  propos  of  the  Quebec  Act  of  1774,  which  had 
assured  to  the  French  inhabitants  full  liberty  in  the  exer- 
cise of  the  Roman  Catholic  religion.  When  the  Commis- 
sioners arrived,  they  found  that  they  had  to  deal  with  the 
Roman  Catholic  priests  entirely,  they  having  full  charge 
of  the  interests  of  the  French  inhabitants.  The  priests 
called  attention  to  the  attacks  of  the  Americans  on  their 
religion  and  to  the  security  they  enjoyed  under  British 
rule,  and  politely  refused  to  listen  to  the  Commissioners. 
Franklin  returned  in  advance  of  the  other  Commission- 
ers, in  time  to  take  part  in  the  signing  of  the  Declara- 
tion of  Independence,  reporting  that  only  one  Canadian 
in  five  hundred  could  read,  and  advising  that,  if  another 
Commission  were  sent,  it  be  composed  wholly  of  school- 
masters. After  the  Commissioners  reported,  there  was  no 
further  idea  of  holding  Canada  except  as  a  dependency. 

On  July  12,  1776,  when  Dickinson's  draft  was  reported 
by  the  Committee,  though  any  equal  union  with  Canada 
was  hopeless,  it  was  plainly  necessary  to  renew,  in  the 
Articles  of  Confederation,  the  offer  which  had  been  made 
in  the  Address  of  Congress  to  the  People  of  Canada. 

Canada  was,  by  the  provisions  of  Article  XX.,  to  be 
"  admitted  into  the  Union  "  and  also  "  to  be  entitled  to 
all  the  advantages  of  the  Union,"  that  is,  it  was  to  be 
admitted  on  equal  terms.  "Any  other  Colony"  was 
simply  "to  be  admitted  into  the  Union  "  in  case  such  ad- 
mission should  be  agreed  to  by  nine  States.  The  plain 
meaning  of  this  was  that  the  American  Confederation 
might  admit  Canada  into  the  Union  on  unequal  terms, 
if  it  refused  to  accept  equal  terms,  and  that  the  Con- 
federation might  admit  any  other  Colony  except  Canada 


366  The  Administration  of  Dependencies 

into  the  Union  on  any  terms  whatever,  and  hence  on 
unequal  terms,  if  the  Congress  saw  fit. 

The  word  "Colony,"  in  this  Article,  was  evidently  used 
in  its  most  inclusive  sense.  The  Article  is  plainly  a  re- 
vision of  the  Article  in  Franklin's  draft  on  the  same  sub- 
ject, in  which  he  provided  for  receiving  into  the  Union 
"any  and  every  Colony  from  Great  Britain  upon  the 
Continent  of  North  America  not  at  present  engaged  in 
our  Association."  The  omission  of  all  these  qualifying 
words  could  only  have  been  for  the  purpose  of  giving  the 
word  "Colony"  its  widest  meaning.  It  meant,  practi- 
cally, any  political  community  external  to  the  Ameri- 
can Union,  which  was  under  the  governmental  control 
of  a  European  Power  or  of  the  American  Union,  as  its 
Imperial  State,  and  which  was  dependent  for  its  exist- 
ence in  a  condition  of  statehood  upon  the  protection 
of  its  Imperial  State.  The  word  "Colony,"  therefore, 
referred  to  the  States  expected  to  arise  in  the  Western 
region,  as  well  as  to  all  others.  It  applied  also  to 
States  dependent  on  the  United  States  which  might 
become  such  by  conquest,  by  cession,  or  by  voluntary 
union  in  a  relationship  of  dependency. 

Over  against  the  contrary  view  expressed  by  Madison 
in  Chapter  43  of  The  Federalist,  may  be  set  the  view  of 
Jefferson  expressed  in  his  draft  of  the  Plan  of  Govern- 
ment for  the  Northwest  Territory,  to  which  reference 
will  be  made  hereafter,  that  the  word  "Colony  "  in  this 
Article  was  intended  to  apply  to  the  new  States  in  the 
Western  region.  Jefferson  was  a  member  of  the  Conti- 
nental Congress  at  the  time  the  Articles  of  Confederation 
were  debated.  Madison  did  not  become  a  member  until 
after  the  Articles  were  adopted. 

Dickinson's  draft  was  debated  in  Congress,  in  Com- 
mittee of  the  Whole,  on  parts  of  thirteen  days  between 
July  22  and  August  20,  1776,  with  the  result  that,  on 
August  20,  a  new  draft  was  reported  by  the  Committee 


The  American  Empire  Planned,  1776    367 

of  the  Whole,  in  which  Article  XIV.  and  all  the  part  of 
Article  XVIII.  above  quoted,  except  that  clause  giving 
power  to  Congress  to  regulate  trade  and  manage  the 
affairs  with  the  Indians,  were  wholly  omitted,  and  Article 
XX.  retained  with  certain  verbal  changes  which  did  not 
affect  its  meaning. 

The  words  of  Article  XVIII.  which  were  stricken  out 
were: 

Limiting  the  bounds  of  those  Colonies  which,  by  Charter  or 
Proclamation,  or  under  any  pretence,  are  said  to  extend  to  the 
South  Sea;  and  ascertaining  the  bounds  of  any  other  Colony 
that  appear  to  be  indeterminate:  Assigning  territories  for  new 
colonies,  either  in  lands  to  be  separated  from  Colonies  and 
heretofore  purchased  or  obtained  by  the  Crown  of  Great 
Britain  from  the  Indians,  or  hereafter  to  be  purchased  or  ob- 
tained from  them;  Disposing  of  all  such  lands  for  the  general 
benefit  of  the  United  Colonies:  Ascertaining  boundaries  in 
such  new  colonies  within  which  forms  of  government  are  to  be 
established  on  the  principles  of  liberty. 

These  were  the  very  words,  and  all  the  words  of  Dick- 
inson's draft  which  related  to  the  administration  of  de- 
pendencies—  that  is,  which  were  intended  to  declare 
the  existence  of  the  American  Federal  Empire,  and  the 
powers  of  "the  United  States  assembled  "  as  the  Imperial 
State  of  that  Empire. 

With  these  provisions  omitted,  the  sole  power  of  Con- 
gress over  the  whole  question  of  the  relationship  between 
the  American  Confederation  and  other  political  com- 
munities related  to  it  was  contained  in  the  words  of 
Article  XX.,  as  amended,  "but  no  other  Colony  shall  be 
admitted  into  the  Union  except  such  admission  be  agreed 
to  by  nine  States." 

The  principal  reason  for  the  rejection  of  these  pro- 
visions seems  to  have  been  that  the  States  were  agreed 


368  The  Administration  of  Dependencies 

that  there  ought  not  to  be  any  provision  in  the  Articles 
which  would  give  Congress  power  to  determine  the 
boundaries  of  any  State  of  the  Union,  as  between  it  and 
the  Union.  The  Congress,  as  the  representative  of  the 
Union,  was,  in  such  a  case,  disqualified  by  interest  to  act 
judicially.  As  there  was  no  absolute  necessity  for  in- 
serting a  provision  in  the  Articles  relating  to  the 
administration  of  dependencies  unless  the  Union,  as  dis- 
tinct from  the  States  composing  it,  had  or  was  immedi- 
ately to  have  dependencies  to  administer,  and  as  the 
Western  region  was  the  only  region  which  it  was  reason- 
ably to  be  expected  would  soon  become  dependent  on 
the  Union,  there  would  have  been  an  almost  necessary 
implication,  if  any  provision  relating  to  the  administra- 
tion of  dependencies  had  been  inserted  in  the  Articles, 
that  it  related  to  the  Western  region,  and  the  Congress 
might  very  properly  have  claimed,  under  such  a  provision, 
the  right  to  determine  the  boundaries  between  the  West- 
ern region  and  the  States  of  the  Union,  as  an  incident  to 
its  power  to  administer  the  region  as  a  dependency. 

It  seems,  however,  that  there  was  another  good  reason 
which  induced  the  Congress  to  refrain  from  defining  the 
powers  of  the  Union  over  the  Western  region.  The 
Congress,  in  framing  the  Articles  of  Confederation,  was, 
in  fact,  sitting  as  the  Constitutional  Convention  of  the 
people  of  the  Union.  The  Articles  of  Confederation 
were  to  be  the  permanent  Constitution  of  the  Union. 
This  was  particularly  the  case  with  respect  to  any  pro- 
visions concerning  the  powers  of  the  Union  over  com- 
munities external  to  itself.  A  policy  in  this  respect 
outlined  in  the  Articles  of  Confederation  would  bind  the 
Union  and  its  successors  for  all  time.  In  attempting  to 
define  the  powers  of  the  Union  in  this  respect,  the  ques- 
tion immediately  arose  whether  the  principles  governing 
the  political  relationship  between  widely  separated  coun- 
tries like  Great  Britain  and  America  governed  the  political 


The  American  Empire  Planned,  1776    369 

relationship  between  adjacent  countries  like  the  Union 
and  the  Western  region. 

It  was  recognized  that  the  problem  was  a  difficult  one, 
and  substantially  the  problem  of  the  proper  relationship 
between  Great  Britain  and  Ireland, — that  is,  the  prob- 
lem how  a  strong  State  can  justly  deal  with  a  State, 
naturally  dependent  on  it,  whose  manifest  destiny  is, 
at  some  time,  either  to  have  its  land  and  population 
incorporated  with  the  land  and  population  of  the 
stronger  State  so  as  to  form  a  Unitary  State,  or  to 
be  admitted  to  an  equal  federal  union  with  the  stronger 
State  or  its  component  States,  by  equal  representation 
in  a  common  Parliament  or  Congress,  so  as  to  form  a 
Federal  State,  but  which  is  unfitted  and  will  necessarily 
continue  for  many  years  to  be  unfitted  for  such  an  incor- 
poration or  admission  to  equal  union.  The  new  States 
which  were  expected  to  arise  in  the  Western  region  were 
certain  to  be  of  this  kind — naturally  dependent  on  the 
American  Confederation  and  manifestly  destined  at  some 
time  in  the  future  for  admission  into  the  Confederation, 
on  an  equality  with  the  old  States  in  the  matter  of  rep- 
resentation in  the  Congress,  but  certain  to  be  unfitted  for 
a  longer  or  shorter  period,  by  reason  of  their  local  circum- 
stances and  conditions,  for  equal  union.  In  trying  to 
work  out  this  problem,  England  and  Great  Britain, 
though  with  unconditional  and  unlimited  powers,  had 
failed ;  and  it  undoubtedly  seemed  to  the  majority  in 
Congress  presumptuous  to  commit  the  Confederation  to 
any  policy  whatever  which,  by  restricting  its  powers, 
might  embarrass  it  in  working  out  the  problem.  Con- 
gress itself  declared  in  its  resolution  of  September  6,  1780, 
that  the  discussion  of  the  question  of  the  power  of  the 
Union  over  the  Western  region  "was  declined,  on  mature 
consideration,  when  the  Articles  of  Confederation  were 
debated." 

The  entire  absence  of  any  provision  in  the  draft   of 


2>7<^  The  Administration  of  Dependencies 

August  20,  1776,  determining  the  power  of  the  Union 
over  the  soil  and  jurisdiction  of  the  Western  region, 
caused  a  delay  in  the  agreement  by  Congress  upon 
Articles  of  Confederation  for  a  year  and  three  months. 
The  whole  matter  lay  dormant  from  August  20,  1776, 
until  October  15,  1777.  On  that  day,  three  resolutions 
relating  to  the  subject  of  the  administration  of  depen- 
dencies were  proposed,  and,  although  all  were  lost,  they 
were,  in  fact,  the  foundation  of  the  whole  policy  of  the 
United  States  towards  the  communities  in  the  Western 
region,  and  were,  in  substance,  acted  upon  subsequently 
as  if  they  had  been  incorporated  into  the  Articles  of 
Confederation. 

The  first  of  these  resolutions  read : 

That  in  order  to  render  the  present  Union  and  Confederacy 
firm  and  perpetual,  it  is  essential  that  the  limits  of  each  re- 
spective territorial  jurisdiction  should  be  ascertained  by  the 
Articles  of  Confederation ;  and  therefore  it  is  recommended  to 
the  Legislatures  of  every  State  to  lay  before  Congress  a  descrip- 
tion of  the  territorial  lands  of  each  of  their  respective  States, 
and  a  summary  of  the  grants,  treaties,  and  proofs,  upon  which 
they  are  claimed,  or  established. 

The  yeas  and  nays  were  taken,  and  only  New  York, 
Pennsylvania,  and  Maryland  voted  in  favor  of  the  resolu- 
tion. 

This  resolution  was  evidently  regarded  as  the  prerequi- 
site to  any  statement  in  the  Articles  regarding  the  kind 
of  power  which  the  Confederation  should  exercise  over  the 
dependencies,  because,  although  two  resolutions  were  im- 
mediately offered  expressing  alternative  theories  of  the 
policy  to  be  pursued  by  the  Union  in  the  administration 
of  the  Western  region,  both  were  lost,  and  the  yeas  and 
nays  were  not  taken, — the  rejection  of  them  evidently 
being  considered  a  foregone  conclusion  after  the  vote 
on  the  first  resolution. 


The  American  Empire  Planned,  1776    371 

The  second  resolution  was : 

That  the  United  States  in  Congress  assembled  shall  have 
the  sole  and  exclusive  right  and  power  to  ascertain  and  fix  the 
western  boundary  of  such  States  as  claim  to  the  South  Sea; 
and  to  dispose  of  all  land  beyond  the  boundary  so  ascertained 
for  the  benefit  of  the  United  States. 

Evidently  this  resolution  expressed  the  view  of  the 
Federal-Imperialist  party  in  Congress,  who  held  to  the 
theory  of  Dickinson  that  the  Congress  was  the  successor 
of  the  King  in  the  Empire  and,  as  such,  had  power  over 
the  dependencies,  which  they  described  as  a  power  of 
"disposition." 

The  third  resolution  was : 

That  the  United  States  in  Congress  assembled  shall  have 
the  sole  and  exclusive  right  and  power  to  ascertain  and  fix  the 
western  boundary  of  such  States  as  claim  to  the  Mississippi, 
or  South  Sea,  and  lay  out  the  land  beyond  the  boundary  so 
ascertained  into  separate  and  independent  States,  from  time 
to  time,  as  the  numbers  and  circumstances  of  the  people 
thereof  may  require. 

This  resolution  expressed  the  anti-Imperialist  theory 
that  the  ' '  States  ' '  were  to  ' '  arise  ' '  in  the  Western  region 
without  the  assistance  or  supervision  of  the  Union,  ex- 
cept that  it  should  fix  the  boundaries  of  these  "States," 
"  from  time  to  time,  as  the  numbers  and  circumstances 
of  the  people  thereof  may  require."  This  resolution,  if 
it  had  been  adopted,  would  have  put  the  United  States 
in  the  power  of  the  communities  of  the  Western  region,, 
with  the  single  reservation  that  it  might  gerrymander  the. 
country,  from  time  to  time,  so  as  to  divide  or  isolate,  and 
thus  weaken,  those  communities  which  persisted  in  acting 
adversely  to  the  general  interests. 

As  will  be  seen,  the  final  policy  was  a  compromise  re- 
sulting from  a  modification  of  the  plan  proposed  in  the 


372  The  Administration  of  Dependencies 

first  resolution,  and  a  combination  of  the  theories  ex- 
pressed in  the  last  two  resolutions. 

The  Articles  of  Confederation  were  agreed  upon  by 
Congress  on  November  15,  1777,  and  on  November  17, 
copies  signed  by  the  President  of  Congress  were  ordered 
sent  to  the  Legislatures  of  the  respective  States  for  rati- 
fication. All  reference  to  civilized  dependencies  of  the 
Confederation  was  omitted,  except  so  far  as  they  were 
referred  to  in  the  Article  relating  to  Canada  and  "other 
Colonies,"  which  was  retained  as  Article  XL,  and  which 
read: 

Canada  acceding  to  this  Confederation,  and  joining  in  the 
measures  of  the  United  States,  shall  be  admitted  into,  and 
entitled  to  all  the  advantages  of  this  Union;  but  no  other 
Colony  shall  be  admitted  into  the  same,  unless  such  admission 
be  agreed  to  by  nine  States. 

The  Articles  contained  very  elaborate  provisions  giv- 
ing power  to  Congress  to  determine  controversies  be- 
tween the  States,  but  none  giving  it  power  to  determine 
controversies  between  the  Confederation  and  a  State,  and 
in  order  to  prevent  a  proceeding  for  determining  a  dis- 
pute between  States  from  being  made  a  pretext  by  Con- 
gress for  adjudicating  the  claims  of  territory  as  between 
the  Confederation  and  a  State,  it  was  provided  that  "no 
State  shall  be  deprived  of  territory  for  the  benefit  of  the 
United  States," 

The  only  provision  relating  to  the  administration  of 
uncivilized  dependencies  was  contained  in  the  power  of 
"  regulating  the  trade  and  managing  all  afifairs  with  the 
Indians,  not  members  of  any  of  the  States."  In  order 
to  prevent  Congress  from  determining  territorial  limits 
as  between  the  Confederation  and  the  States  under  pre- 
text of  "  regulating  the  trade  and  managing  all  affairs 
with  the  Indians,"  it  was  made  a  proviso  to  this  power 


The  American  Empire  Planned,  1776    373 

that  "  the  legislative  right  of  any  State  within  its  own 
limits  be  not  infringed  or  violated." 

In  spite  of  the  fact  that  Congress  "declined  to  discuss  " 
the  question  of  the  administration  of  the  dependencies 
of  the  Union  at  the  time  the  Articles  of  Confederation 
were  debated,  the  work  of  the  Committee  of  Thirteen  on 
this  subject  was  not  lost.  They  had,  in  fact,  planned  the 
American  Federal  Empire,  and  their  plans  were  finally 
adopted. 


CHAPTER   XX 

THE   AMERICAN   EMPIRE   DECLARED,    I778 

IF  any  proof  is  needed,  other  than  Franklin's  and 
Dickinson's  drafts  of  Articles  of  Confederation,  that 
it  was  the  purpose  of  the  United  Colonies,  from  the 
moment  when  their  independence  became  a  matter  of 
necessity,  to  form  themselves  into  a  Union  of  States 
which  should  be  the  Imperial  State  of  an  American  Em- 
.  pire,  all  doubt  on  the  subject  is  removed  by  the  Treaties 
of  Alliance  and  Commerce  with  France,  signed  February 
6,  1778,  and  ratified  by  Congress  on  May  5,  1778.  The 
Treaty  of  Alliance  shows,  beyond  a  doubt,  that  the 
American  Union  intended  to  reduce  to  its  possession  by 
conquest,  and  to  hold  permanently,  all  those  parts  of  the 
American  Continent  external  to  the  Union,  which  then 
belonged  to  Great  Britain,  and  also  the  Island  of  Ber- 
muda, as  dependencies  of  the  Union,  or  to  incorporate 
these  regions,  as  States,  into  the  Union,  according  to  its 
discretion — all  conquests  from  Great  Britain  in  the  West 
Indies  being  set  apart  to  France,  to  be  held  as  its  de- 
pendencies. The  purpose  of  Congress  in  this  respect 
was  made  clear  so  early  as  December  30,  1776,  by  its  In- 
structions to  the  Commissioners  at  the  Court  of  France, 
directing  them  to  secure,  if  possible,  a  clause  in  the  treaty 
they  were  endeavoring  to  negotiate,  which  should  pro- 
vide that  in  case  Cape  Breton,  Newfoundland,  and  Nova 
Scotia  should  be  "reduced,"  "the  Province  of  Nova 
Scotia,  Island  of  Cape  Breton,  and  the  remaining  part  of 
Newfoundland  "  (one  half)  should  be  "annexed  to  the 
territory  and  government  of  the  United  States." 

374 


The  American  Empire  Declared,  1778    375 

In  the  Treaty  of  Alliance  it  was  provided : 

Article  V.  If  the  United  States  should  think  fit  to  attempt 
the  reduction  of  the  British  power  remaining  in  the  northern 
parts  of  America,  or  the  Islands  of  Bermudas,  those  countries 
or  islands,  incase  of  success,  shall  be  confederated  with  or  de- 
pendent upon  the  said  United  States. 

Article  VI.  The  most  Christian  King  renounces  forever  the 
Islands  of  Bermudas,  as  well  as  any  part  of  the  Continent  of 
North  America  which,  before  the  Treaty  of  Paris  in  1763,  or 
in  virtue  of  that  Treaty,  were  acknowledged  to  belong  to  the 
Crown  of  Great  Britain,  or  to  the  United  States,  heretofore 
called  British  Colonies,  or  which  are  at  this  time,  or  have  lately 
been,  under  the  power  of  the  King  and  Crown  of  Great 
Britain. 

Article  VII.  If  his  most  Christian  Majesty  shall  think 
proper  to  attack  any  of  the  islands  situated  in  the  Gulf  of 
Mexico,  or  near  that  Gulf,  which  are  at  present  under  the 
power  of  Great  Britain,  all  the  said  isles,  in  case  of  success, 
shall  appertain  to  the  Crown  of  France. 

Article  XI.  The  two  parties  guarantee,  mutually,  from  the 
present  time  and  forever,  against  all  other  powers,  to  wit,  the 
United  States  to  his  most  Christian  Majesty,  the  present  pos- 
sessions of  the  Crown  of  France  in  America,  as  well  as  those 
which  it  may  acquire  by  the  future  treaty  of  peace;  and 
his  most  Christian  Majesty  guarantees,  on  his  part,  to  the 
United  States,  their  liberty,  sovereignty,  and  independence, 
absolute  and  unlimited,  as  well  in  matters  of  government  as  of 
commerce,  and  also  their  possessions,  and  the  additions  or  con- 
quests that  their  Confederation  may  obtain  during  the  tvar,  from 
any  of  the  dominions  now  or  heretofore  possessed  by  Great 
Britain  in  North  America,  conformably  to  the  fifth  and  sixth 
Articles   above  written. 

In  the  Treaty  of  Commerce  which  accompanied  the 
Treaty  of  Alliance  and  in  the  Instructions  of  Congress 
on  which  the  Treaty  of  Commerce  was  based,  the  expres- 
sion "  subjects  of  the  United  States  "  was  used— in  the 


37^  The  Administration  of  Dependencies 

latter,  repeatedly.  In  the  Instructions  the  phrase  was 
"  subjects,  people,  and  inhabitants  of  the  United 
States."  In  the  Treaty  the  word  "subjects  "  was  coupled 
with  the  word  "  citizens"  and  "  inhabitants."  In  the 
ninth  Article,  reference  was  made  to  the  "  states, 
provinces,  and  dominions  of  each  party,"  thereby 
implying  that  the  United  States  had  or  might  have 
"  provinces"  or  "  dominions."  In  the  seventh  Article 
mention  was  made  of  places  "  within  the  jurisdiction  of 
the  United  States  or  any  of  them,"  thus  distinguishing 
between  places  within  the  jurisdiction  of  the  United 
States  and  places  within  the  jurisdiction  of  the  respective 
States. 

The  Treaty  of  Alliance  was  a  Declaration  of  the  Ameri- 
can Empire,  supplementing  the  Declaration  of  Indepen- 
dence, which  was  a  Declaration  of  the  American  State. 
The  Treaty  of  Alliance  was  also  an  international  recog- 
nition of  both  the  American  State  and  the  American 
Empire.  The  French  Commissioners  objected  to  recog- 
nizing the  sovereignty  and  independence  of  the  United 
States,  fearing  that  France  would  be  embroiled  in  the 
disputes  of  the  several  States.  The  American  Commis- 
sioners assured  them  that  the  Treaty  should  be  construed 
as  recognizing  the  sovereignty  and  independence  of  the 
American  Union.  The  facts  concerning  this  conference 
are  narrated  by  Arthur  Lee,  one  of  the  Commissioners, 
in  his  diary  of  the  negotiations.  This  action  of  the  Com- 
missioners was  quite  in  accordance  with  the  action  of  the 
Commissioners  appointed  by  Congress  in  September, 
1776,  at  the  solicitation  of  Lord  Howe,  to  confer  with 
him  under  authority  given  him,  as  Commander-in-Chief 
of  America,  by  the  Act  Prohibiting  Trade  and  Inter- 
course with  America.  These  Commissioners,  under  the 
Instructions  of  Congress,  refused  to  confer  except  as 
Commissioners  of  the  Union,  and  the  conference  came 
to  an  end. 


The  American  Empire  Declared,  1778    377 

From  the  moment  the  French  Treaties  were  signed, 
therefore,  the  American  Union  existed  as  an  independent 
State  dejure,  for  all  international  and  Imperial  purposes, 
and  the  American  Empire  existed  in  posse. 

Had  the  American  Empire  rested  wholly  upon  the 
foundation  of  the  Declaration  contained  in  the  Treaty  of 
Alliance,  its  character  as  a  federal  organism  might  well 
have  been  open  to  question.  The  contemporaneous 
public  statement  made  by  the  Congress,  however,  on 
rejecting  the  proposals  of  the  British  Government  for 
conciliation,  in  which  were  announced  the  principles 
which  the  American  Union  believed  to  be  the  true  prin- 
ciples on  which  the  administration,  by  any  State,  of  its 
dependencies  ought  to  be  based,  limited  the  meaning 
of  the  expression  "dependent  upon  the  United  States" 
in  the  Treaty  of  Alliance,  so  that  the  American  Union 
was  thereafter  inevitably  and  forever  committed  to  the 
establishment  of  an  American  Empire  which  should  be  a 
federal  organism.  The  proposals  of  the  British  Govern- 
ment and  the  action  of  the  Congress  upon  them  were, 
therefore,  of  such  importance  as  facts  bearing  on  the 
Constitution  of  the  American  Empire,  that  it  is  neces- 
sary to  go  into  the  history  of  them  with  some  care.  The 
facts  were  as  follows : 

The  British  Government,  upon  receipt  of  the  news  of 
the  signing  of  the  French  Treaties,  set  themselves  in 
earnest  to  the  work  of  conciliation  which  they  had  had 
for  some  time  under  consideration.  Copies  of  the  Bills 
agreed  upon  by  the  Ministry  were  sent,  so  as  to  arrive  in 
advance  of  the  Treaties,  to  Sir  Henry  Clinton,  who  had 
been  appointed  to  succeed  Lord  Howe,  as  Commander- 
in-Chief  of  the  British  forces  in  America.  The  Bills 
were  printed  and  authenticated  by  order  of  the  British 
Commander-in-Chief,  and  were  circulated  in  Philadelphia 
and  elsewhere.  General  Washington  sent  printed  copies 
of  these  Bills  to  Congress,   which  was  then   sitting  at 


37^  The  Administration  of  Dependencies 

York,  and  they  weref  laid  before  that  body  on  April  2i, 
1778.  At  that  time  Congress  had  no  knowledge  of 
the  French  Treaties,  their  first  knowledge  of  them  being 
obtained  when  the  messenger  arrived  with  them  from 
France  on  May  2.  They  therefore  regarded  the  drafts 
of  Bills  as  containing  an  informal  proposition  from  the 
British  Commander-in-Chief  under  the  Act  Prohibiting 
Trade  and  Intercourse  with  America,  and  realizing  that 
the  Colonies  were  as  yet  only  States  de  facto,  being  with- 
out international  recognition,  they  considered  the  propo- 
sition on  its  merits — for  this  purpose  referring  the  drafts 
of  Bills  to  a  committee  of  which  Gouverneur  Morris  was 
made  the  chairman. 

As  Morris  was  the  author  of  the  clause  in  the  Constitu- 
tion of  the  United  States  relating  to  the  administration 
of  dependencies,  a  special  interest  attaches  to  his  connec- 
tion with  the  proceedings  of  Congress  in  rejecting  the 
British  proposals,  considering  in  how  vital  a  manner  this 
action  of  Congress  related  to  the  American  Empire.  Mor- 
ris was,  at  that  time,  a  delegate  from  the  State  of  New 
York,  having  been  elected  in  the  year  preceding,  when  he 
was  only  twenty-five  years  of  age.  He  was  a  member  of  a 
family  which  for  many  years  had  held  a  high  social  po- 
sition in  the  city  of  New  York,  and  which  was  noted  for 
its  conservatism.  He  had  travelled  extensively  abroad  as 
a  young  man,  was  a  fine  French  scholar,  and,  as  an  ardent 
patriot,  had,  from  the  very  first,  thrown  himself  into  the 
study  of  the  true  theory  of  the  relationship  between  Great 
Britain  and  the  Colonies.  As  a  member  of  the  New 
York  Convention  of  1774,  he  had  had  an  important, 
if  not  a  leading  part  in  bringing  about  the  adoption  of 
very  conservative  resolutions — equalled,  indeed,  in  their 
conservatism,  only  by  those  of  Pennsylvania,  drafted  by 
Dickinson — which  based  the  whole  power  of  Great  Britain 
over  the  Colonies  upon  "necessity"  and  the  nature  of 
things,   by  the  declaration:   "That,  from  the  necessity 


The  American  Empire  Declared,  1778    379 

of  the  case.  Great  Britain  ought  to  regulate  the  trade  of 
the  whole  Empire  for  the  general  benefit  of  the  whole, 
and  not  for  the  separate  interest  of  any  particular  part." 
He  was  a  firm  believer  in  a  strong,  dignified  and  orderly 
government.  Upon  his  election  to  Congress,  he  im- 
mediately became  a  leader,  especially  in  matters  involv- 
ing the  foreign  relations  of  the  Union.  As  chairman  of 
the  committee  appointed  to  report  on  the  informal  propo- 
sition contained  in  the  published  drafts  of  the  Bills  for 
Conciliation,  he  wrote  the  report  of  the  committee,  and 
the  report  was  adopted  by  Congress. 

The  first  Bill  was  entitled  "A  Bill  for  Declaring  the 
Intentions  of  the  Parliament  of  Great  Britain,  concerning 
the  Exercise  of  the  Right  of  Imposing  Taxes  within  his 
Majesty's  Colonies,  Provinces  and  Plantations  in  North 
America."  By  the  terms  of  this  Bill  it  was  to  be 
"declared  and  enacted": 

That  from  and  after  the  passing  of  this  Act,  the  King  and 
Parliament  of  Great  Britain  will  not  impose  any  duty,  tax  or 
assessment  whatsoever,  payable  within  any  of  his  Majesty's 
Colonies,  Provinces  and  Plantations  in  North  America,  except 
only  such  duties  as  it  may  deem  expedient  to  impose  for  the 
regulation  of  commerce;  the  net  produce  of  such  duties  to  be 
always  paid  and  applied  to  and  for  the  use  of  the  Colony, 
Province  and  Plantation  in  which  the  same  shall  be  respec- 
tively levied,  in  such  manner  as  other  duties  collected  by  the 
authority  of  the  respective  General  Courts,  or  General  As- 
semblies, of  such  Colonies,  Provinces  or  Plantations,  are 
ordinarily  paid  and  applied. 

The  second  Bill  was  entitled  "A  Bill  to  Enable  his 
Majesty  to  Appoint  Commissioners  with  Sufficient 
Powers  to  Treat,  Consult  and  Agree  upon  the  Means  of 
Quieting  the  Disorders  now  Subsisting  in  Certain  of  the 
Colonies,  Plantations  and  Provinces  of  North  America." 


380  The  Administration  of  Dependencies 

It  provided  for  the  appointment  of  Commissioners  by  the 
King  with  the  following  powers: 

To  treat,  consult  and  agree  with  such  body  or  bodies  politi- 
cal and  corporate,  or  with  such  assembly  or  assemblies  of  men, 
or  with  such  person  or  persons,  as  in  their  wisdom  and  discre- 
tion they  shall  think  meet,  of  and  concerning  any  grievances 
or  complaints  of  grievances  existing  or  supposed  to  exist  in  the 
government  of  any  of  the  said  Colonies,  Provinces  or  Planta- 
tions respectively,  or  in  the  laws  and  statutes  of  this  Realm 
respecting  the  same;  and  of  and  concerning  any  aid  or  con- 
tribution to  be  furnished  by  all  or  any  of  the  Colonies,  Prov- 
inces or  Plantations  respectively,  for  the  common  defence  of 
this  Realm  and  the  dominions  thereunto  belonging;  and  of 
and  concerning  such  other  regulations,  provisions,  matters  and 
things,  as  upon  mature  deliberation  of  the  said  Commissioners 
shall  be  thought  necessary  and  convenient  for  the  honor  of  his 
Majesty  and  the  common  good  of  all  his  subjects:  Provided, 
also,  and  be  it  further  enacted  and  declared.  That  no  regula- 
tion, provision,  matter  or  thing  so  proposed,  treated,  consulted 
or  agreed,  shall  have  any  other  force  or  effect,  or  be  carried 
further  into  execution,  than  is  hereinafter  mentioned  and  pro- 
vided, until  the  same  shall  have  been  approved  by  Parliament. 

By  the  proposed  Bill,  the  Commissioners  were  to  have 
power  to  proclaim  a  suspension  of  hostilities  and  to  sus- 
pend the  operation  of  all  or  any  of  the  Acts  of  Parliament 
relating  to  the  Colonies  passed  since  the  close  of  the  war 
in  1763,  to  grant  pardons,  and  to  appoint  in  each  Colony  a 
Governor  and  Commander-in-Chief,  "to  have,  hold  and 
exercise,  during  his  Majesty's  pleasure,  the  said  offices  of 
Governor  and  Commander-in-Chief  in  and  for  such  Col- 
ony or  Plantation  respectively,  with  all  such  powers  and 
authorities  as  any  Governor  of  such  Province  heretofore 
appointed  by  his  Majesty  might  or  could  have  exercised." 

In  the  report  of  the  committee  submitted  the  next  day 
— April  22,  1778 — which  was  adopted  by  Congress,  it  was 


The  American  Empire  Declared,  1778    381 

recommended  that  the  propositions  contained  in  the  Bills 
be  rejected  for  the  following  reasons,  among  others : 

The  first  of  these  Bills  appears,  from  the  title,  to  be  a  de- 
claration of  the  intentions  of  the  British  Parliament  concerning 
the  exercise  of  the  right  of  imposing  taxes  within  these  States. 
Wherefore,  should  these  States  treat  under  the  said  Bill,  they 
would  indirectly  acknowledge  that  right,  to  obtain  which 
acknowledgment  the  present  war  has  been  avowedly  under- 
taken and  prosecuted  on  the  part  of  Great  Britain. 

Should  such  pretended  right  be  acquiesced  in,  then,  of  con- 
sequence, the  same  might  be  exercised  whenever  the  British 
Parliament  should  find  themselves  in  a  different  temper  and 
disposition;  since  it  must'  depend  upon  those  and  such  like 
contingencies,  how  far  men  will  act  according  to  their  former 
intentions. 

That  the  said  first  Bill,  in  the  body  thereof,  contains  no  new 
matter,  but  is  precisely  the  same  with  the  Motion  before- 
mentioned  [Lord  North's  Proposals  of  1775],  excepting  the 
following  particular,  viz.,  that  by  that  Motion  actual  taxation 
was  to  be  suspended  so  long  as  America  should  give  as  much 
as  Parliament  might  think  proper:  Whereas,  by  the  proposed 
Bill,  it  is  to  be  suspended  as  long  as  future  Parliaments  con- 
tinue of  the  same  mind  with  the  present. 

From  the  second  Bill  it  appears  that  the  British  King  may, 
if  he  pleases,  appoint  Commissioners  to  treat  and  agree  with 
those  whom  they  please  about  a  variety  of  things  therein  men- 
tioned; but  such  treaties  and  agreements  are  to  be  of  no 
validity  without  the  concurrence  of  the  said  Parliament,  ex- 
cept so  far  as  they  relate  to  the  suspension  of  hostilities  and 
of  certain  of  their  Acts,  the  granting  of  pardons,  and  the  ap- 
pointing of  Governors  to  these  sovereign,  free  and  indepen- 
dent States.  Wherefore,  the  said  Parliament  have  reserved  to 
themselves,  in  express  words,  the  power  of  setting  aside  any 
such  treaty  and  taking  advantage  of  any  circumstances  which 
may  arise  to  subject  this  continent  to  their  usurpations. 

The  inhabitants  of  these  States  being  claimed  by  them  as 
subjects,  they  may  infer,  from  the  nature  of  the  negotiation 


382    The  Administration  of  Dependencies 

now  pretended  to  be  set  on  foot,  that  the  said  inhabitants 
would  of  right  be  afterwards  bound  by  such  laws  as  they 
should  make.  Wherefore  any  agreement  entered  into  on  such 
negotiation  might  at  any  future  time  be  repealed. 

The  Bills  were  introduced  into  Parliament  by  Lord 
North  on  February  17,  and  were  passed  on  March  9. 
The  first  Act  differed  from  the  draft  in  the  respect  that  it 
was  entitled  :  "An  Act  for  Removing  all  Doubts  and  Ap- 
prehensions concerning  Taxation  by  the  Parliament  of 
Great  Britain  in  any  of  the  Colonies,  Provinces  and  Plan- 
tations in  North  America  and  the  West  Indies,"  and  that 
it  contained  a  clause  repealing  the  duties  on  tea. 

The  second  Act  differed  from  the  draft  in  the  respect 
that  the  general  clause  in  the  draft,  authorizing  the  Com- 
missioners to  treat  concerning  "any  other  regulations, 
provisions,  matters  and  things,  necessary  or  convenient 
for  the  honor  of  His  Majesty,  and  for  the  common  good 
of  all  his  subjects,"  was  changed  so  that  they  were  given 
power  to  treat  concerning  "any  other  regulations,  pro- 
visions, matters  and  things,  necessary  or  convenient  for 
the  honor  of  his  Majesty  and  his  Parliament,  and  for  the 
common  good  of  all  his  subjects" — thus  prohibiting  the 
Commissioners  from  conducting  any  negotiations  which 
did  not  proceed  upon  the  basis  that  Parliament  had  some 
power  in  the  Empire.  With  the  two  Conciliatory  Acts 
was  enacted  a  separate  Act  repealing  the  Act  of  1774, 
which  had  deprived  the  Province  of  Massachusetts  Bay  of 
its  elected  House  of  Representatives. 

The  Declaratory  Act  of  1766,  which  declared  the  power 
of  Parliament  to  pass  laws  to  bind  the  Colonies  and  their 
inhabitants  "in  all  cases  whatsoever,"  it  was  decided, 
after  discussion  in  Parliament,  not  to  repeal. 

After  the  passage  of  the  Conciliatory  Acts,  the  text  of 
the  French  Treaties  was  made  known  by  the  Ministry  to 
Parliament,  and  the  question  was  raised  of  authorizing 


The  American  Empire  Declared,  1778    383 

the  Commissioners  to  acknowledge  the  independence  of 
the  American  States,  it  being  perceived  at  once  that  the 
Congress  would,  in  all  probability,  insist  on  that  condi- 
tion. Many  who  favored  giving  this  authority  to  the 
Commissioners  were  influenced  by  the  economic  theories 
of  Adam  Smith,  contained  in  his  Inquiry  into  the  Nature 
and  Causes  of  the  Wealth  of  Nations,  published  in  1776. 
In  this  work  the  mercantile  system  was  denounced  in  toto, 
and  universal  free  trade  advocated.  This  extreme  and 
radical  view  of  the  economic  relationship  between  Great 
Britain  and  the  American  Colonies  naturally  led  Smith  to 
take  an  equally  extreme  and  radical  view  of  the  political 
relationship.  He  advocated  absolute  independence  for 
the  Colonies,  or  if  this  were  impracticable,  the  absolute 
incorporation  of  their  lands  and  populations  into  the  land 
and  population  of  Great  Britain,  by  granting  them  repre- 
sentation in  Parliament,  proportioned  to  their  contri- 
butions to  the  Imperial  defence  and  welfare.  The  latter 
alternative  was  substantially  Pownall's  plan,  which,  upon 
its  proposition  in  1768,  had  been  immediately  rejected 
both  by  Great  Britain  and  the  Colonies. 

Lord  Chatham,  on  the  day  when  this  proposition  was 
to  come  up  in  the  House  of  Lords, — April  7, — had  him- 
self carried  to  the  House  from  a  bed  of  sickness  and  suf- 
fering, and  after  making  a  magnificent  protest  against 
the  proposed  dismemberment  of  the  British  Empire,  fell, 
stricken  by  apoplexy,  as  he  rose  to  reply  to  his  opponents. 
His  death  occurred  about  five  weeks  later — on  May  11. 

Lord  Chatham  was  consistent  to  the  last.  In  the  previ- 
ous November  he  had  moved  in  the  House  of  Lords  an 
Address  to  the  King  for  a  cessation  of  hostilities  in  Amer- 
ica, carefully  limiting  the  purpose  of  it  to  the  restoration 
of  the  relationship  of  dependency  which  existed  in  1763. 
On  that  occasion  he  said : 

My  Lords,  no  man  wishes  for  the  due  dependence  of  Amer- 


sH  The  Administration  of  Dependencies 

ica  on  this  country  more  than  I  do.  To  preserve  it,  and  not 
confirm  that  state  of  dependence  into  which  your  measures 
hitherto  have  driven  them,  is  the  object  which  we  ought  to 
unite  in  attaining.  ...  In  a  due  constitutional  depend- 
ency, including  the  ancient  supremacy  of  this  country  in 
regulating  their  commerce  and  navigation,  consists  the  mutual 
happiness  and  prosperity  both  of  England  and  America. 

On  June  lo,  1778,  the  three, British  Commissioners,  the 
Earl  of  Carlisle,  William  Eden,  and  George  Johnstone, 
sent  to  Congress  copies  of  the  Conciliatory  Acts  and  of 
their  Commission,  together  with  a  letter  signed  by  them, 
which  were  received  by  Congress  on  June  13.  In  this 
letter  the  Commissioners  spoke  of  the  French  Treaties  as 
"the  insidious  interposition  of  a  power  which  has,  from 
the  first  settlement  of  these  Colonies,  been  actuated  with 
enemity  to  us  both,"  and  proposed  that  the  United 
States  rescind  the  Treaties,  because  "it  is  notorious  that 
they  were  made  in  consequence  of  the  plans  of  accommo- 
dation previously  concerted  in  Great  Britain,  and  with  a 
view  to  prevent  our  reconciliation  and  to  prolong  this 
destructive  war."  They  proposed  to  enter  into  an  "ar- 
rangement "  on  the  following  basis: 

To  consent  to  a  cessation  of  hostilities,  both  by  sea  and 
land. 

To  restore  free  intercourse,  to  revive  mutual  affection,  and 
renew  the  common  benefits  of  naturalization,  through  the 
several  parts  of  this  Empire. 

To  extend  every  freedom  of  trade  that  our  respective  in- 
terests can  require. 

To  agree  that  no  military  forces  shall  be  kept  up  in  the  dif- 
ferent States  of  North  America,  without  the  consent  of  the 
General  Congress  or  particular  Assemblies. 

To  concur  in  measures  calculated  to  discharge  the  debts  of 
America,  and  to  raise  the  credit  and  value  of  the  paper  cir- 
culation. 

To  perpetuate  our  union  by  a  reciprocal  deputation  of  an 


The  American  Empire  Declared,  1778    385 

Agent  or  Agents  from  the  different  States,  who  shall  have  the 
privilege  of  a  seat  and  voice  in  the  Parliament  of  Great  Brit- 
ain; or,  if  sent  from  Britain,  in  that  case  to  have  a  seat 
and  voice  in  the  Assemblies  of  the  different  States  to  which 
they  may  be  deputed  respectively,  in  order  to  attend  the 
several  interests  of  those  by  whom  they  are  deputed. 

In  short,  to  establish  the  power  of  the  respective  Legislatures 
in  each  particular  State  to  settle  its  revenue,  its  civil  and  mili- 
tary establishment,  and  to  exercise  a  perfect  freedom  of  legis- 
lation and  internal  government,  so  that  the  British  States 
throughout  North  America,  acting  with  us  in  peace  and  war 
under  one  common  Sovereign,  may  have  the  irrevocable  en- 
joyment of  every  privilege  that  is  short  of  a  total  separation  of 
interests  or  consistent  with  that  union  of  force,  on  which  the 
safety  of  our  common  religion  and  liberty  depends. 

To  this  the  Congress,  through  the  President,  replied 
on  June  17: 

Nothing  but  an  earnest  desire  to  spare  the  further  effusion 
of  blood  could  have  induced  [the  Congress]  to  read  a  paper 
containing  expressions  so  disrespectful  to  his  most  Christian 
Majesty,  the  great  and  good  ally  of  these  States  ;  or  to  con- 
sider propositions  so  derogatory  to  the  honor  of  an  independent 
nation. 

The  Acts  of  the  British  Parliament,  the  Commission  from 
your  Sovereign,  and  your  letter,  suppose  the  people  of  those 
States  to  be  subjects  of  the  Crown  of  Great  Britain,  and  are 
founded  on  the  idea  of  dependence,  which  is  utterly  inad- 
missible. 

The  letter  concluded  by  stating  the  disposition  of 
Congress  to  negotiate  regarding  "a  treaty  of  peace  and 
commerce,  not  inconsistent  with  treaties  already  subsist- 
ing,'' when  Great  Britain  should  vi^ithdraw  its  fleets  and 
armies  or  should  explicitly  acknowledge  the  independence 
of  the  States. 

To  this  the  Commissioners  replied  in  a  letter  received 

95 


386  The  Administration  of  Dependencies 

in  Congress  June  i8,  1778,  in  which  they  said,  speaking 
of  the  requirement  that  as  preliminary,  to  any  negotia- 
tion, the  independence  of  the  States  should  be  acknow- 
ledged : 

We  are  not  inclined  to  dispute  with  you  about  the  meaning 
of  words;  but  so  far  as  you  mean  the  entire  privilege  of  the 
people  of  North  America  to  dispose  of  their  property,  and  to 
govern  themselves  without  any  reference  to  Great  Britain,  be- 
yond what  is  necessary  to  preserve  that  union  of  force  in 
which  our  mutual  safety  and  advantage  consist,  we  think  that, 
so  far,  their  independency  is  fully  acknowledged  in  the  terms 
of  our  letter  of  the  loth  of  June.  And  we  are  willing  to  enter 
upon  a  fair  discussion  with  you,  of  all  the  circumstances  that 
may  be  necessary  to  ensure  or  even  to  enlarge  that  indepen- 
dency. 

We  assure  you  that  no  circumstance  will  give  us  more  satis- 
faction than  to  find  that  the  extent  of  our  future  connection  is 
to  be  determined  on  principles  of  mere  reason  and  the  con- 
siderations of  mutual  interest,  on  which  we  are  willing  likewise 
to  rest  the  permanency  of  any  arrangements  we  may  form. 

Congress  immediately  resolved  "that  no  answer  be 
given  to  the  letter  of  the  British  Commissioners." 

The  Commissioners,  on  October  3,  1778,  issued  a 
"Manifesto  and  Proclamation  "  to  be  transmitted  to  the 
Assemblies  of  the  respective  States,  in  which  they  said : 

To  the  members  of  the  Congress,  we  again  declare  that  we 
are  ready  to  concur  in  all  satisfactory  and  just  arrangements 
for  securing  to  them  and  their  respective  constituents  the  re- 
establishment  of  peace,  with  the  exemption  from  any  imposition 
of  taxes  by  the  Parliament  of  Great  Britain,  and  the  irrevoc- 
able enjoyment  of  every,  privilege  consistent  with  that  union 
of  interests  and  force  on  which  our  mutual  prosperity  and  the 
safety  of  our  common  religion  and  liberty  depend. 


The  American  Empire  Declared,  1778    387 

In  the  Proclamation,  it  was  claimed  that  the  Congress 
should  have  transmitted  the  proposals  of  the  Commis- 
sioners to  the  General  Assemblies  of  the  several  States. 
The  Trench  Treaties  were  referred  to  as  "pretended  for- 
eign treaties  which  [the  Congress]  know  are  delusively 
framed  in  the  first  instance,  and  which  have  never  yet 
been  ratified  by  the  people  of  this  continent." 

To  the  General  Assemblies  of  the  several  States  it  was 
declared : 

We  offer  to  the  Colonies  at  large,  or  separately,  a  general  or 
separate  peace,  with  the  revival  of  their  ancient  Governments, 
secured  against  any  future  infringements,  and  protected  for- 
ever from  taxation  by  Great  Britain.  And,  with  respect  to 
such  farther  regulations,  whether  civil,  military,  or  commer- 
cial, as  they  may  wish  to  be  framed  and  established,  we  prom- 
ise all  the  concurrence  and  assistance  that  his  Majesty's 
Commission  authorizes  and  enables  us  to  give. 

The  Proclamation  contained  an  offer  of  amnesty  and 
pardon  on  yielding  submission.  It  was,  by  its  terms,  to 
be  in  in  force  forty  days — until  November  11,  1778. 

As  soon  as  this  Proclamation  was  brought  to  the  atten- 
tion of  Congress,  they  issued  a  "Manifesto  and  Proclama- 
tion" in  reply,  which  was  practically  a  general  denial  that 
the  Commissioners  had  ever  made  or  could  make  a  propo- 
sition which,  if  accepted,  would  have  the  result  which 
they  had  claimed  in  their  Manifesto;  and,  on  October 
26,  1778,  Congress  appointed  a  committee  consisting  of 
Gouverneur  Morris,  as  chairman,  and  William  Henry 
Drayton  and  Richard  Henry  Lee,  "to  superintend  the 
publication  of  such  matters  relating  to  the  disputes,  pe- 
titions and  negotiations  to  and  with  the  Court  of  Great 
Britain,  and  such  notes  and  explanations  thereon,  as  to 
them  shall  appear  proper." 

As  chairman  of  this  committee,  Morris  prepared  a 
statement  which,  when  printed,  made  a  pamphlet  of  122 


388  The  Administration  of  Dependencies 

pages.  The  pamphlet  was  entitled  Observations  on  the 
American  Revolution,  and  set  out  in  detail  all  the  Acts  of 
Parliament  and  Congress,  explaining  their  bearings  one 
on  the  other,  and  showing  that  the  denial  by  Great  Britain 
of  all  moral  or  legal  obligation  in  the  exercise  of  its  power 
over  the  Colonies,  contained  in  the  Declaratory  Act  of 
1766,  which  it  was  not  proposed  to  repeal,  stood  in  the 
way  of  any  dignified  relationship  between  that  State 
and  the  Colonies. 

From  this  pamphlet  it  is  made  clear  beyond  a  doubt  that 
the  American  States  were  willing,  at  all  times,  to  treat 
for  a  return  to  a  position  of  dependence  on  the  State  of 
Great  Britain,  on  the  terms  that  the  British  Empire 
should  be  declared  to  be  a  federal  organism.  After  the 
French  Treaties  were  signed  on  February  6,  1778,  and 
especially  after  they  were  ratified  on  May  5,  1778,  the 
Union,  and  its  component  States,  were  independent 
States  de  jure  by  international  recognition,  and  could  not 
have  treated  for  a  return  to  dependence  except  on  the 
basis  that  the  international  obligations  assumed  by  those 
Treaties  should  be  fulfilled.  The  statement  of  Congress 
on  this  subject  was  as  follows : 

It  is  to  be  observed,  that  a  circumstance  had  intervened 
between  the  resolutions  of  the  22nd  of  April  and  the  receipt 
of  the  letter  from  the  Commissioners.  This  was  the  arrival  of 
the  copies  of  Treaties  entered  into  with  his  most  Christian 
Majesty  [the  King  of  France],  which  was  the  first  intelligence 
which  had  been  received  from  Europe  in  the  space  of  a  year. 
The  resolutions  of  the  House,  therefore,  on  the  22nd  of  April 
were  founded  simply  on  the  firm  determination,  under  no 
change  of  fortune  whatever  to  recede  from  the  Declaration  of 
Independenceof  July,  1776, and  for  this  reason, as  a  preliminary 
to  any  treaty,  it  was  required  that  Great  Britain  should  either 
acknowledge  our  independence  or  withdraw  her  fleets  and 
armies,  because  upon  no  other  principle  could  America  be  said 
to  possess  that  degree  of  equality  and  freedom  which  is  essential 


The  American  Empire  Declared,  1778    389 

to  the  validity  of  national  compacts.  The  Treaty  with  France 
being  out  of  the  question,  had  these  preliminaries  been  com- 
plied with,  we  should  have  been  bound  in  honor,  as  we  certainly 
were  by  inclination  and  the  principles  of  humanity,  to  enter  upon 
a  conference  for  the  purpose  of  sheathing  the  sword.  But  since 
by  that  Treaty  the  United  States  could  not,  upon  a  certain 
contingency,  make  either  peace  or  truce  without  the  consent 
of  her  ally,  it  became  necessary  to  provide  that  any  treaties  to 
be  made  should  not  be  inconsistent  with  the  Treaties  already 
subsisting. 

In  this  pamphlet,  the  proposals  of  the  Commissioners 
were  taken  up  separately  and  criticised.  Parliamentary 
regulations  of  trade,  it  was  claimed,  would  inevitably  be 
unfair  to  the  Colonies  and  in  the  interest  of  Great  Britain. 
The  proposition  not  to  keep  a  military  force  in  America 
without  the  consent  of  Congress  or  the  Colonial  Assem- 
blies was  objected  to  because  one  Parliament  could  not 
bind  a  succeeding  Parliament  in  this  respect.  The 
proposition  concerning  the  debts  of  the  Colonies  was  de- 
clared to  be  insufficient  because  furnishing  no  security 
that  they  would  not  ultimately  be  required  to  participate 
in  the  payment  of  the  British  debts.  The  proposition  to 
allow  reciprocal  representation  of  Great  Britain  in  the 
Colonial  Assemblies  and  of  the  Colonies  in  Parliament 
was  denounced  in  the  following  language : 

The  fourth  offer  is  ...  to  perpetuate  our  slavery,  by 
taking  from  us,  on  the  one  hand,  the  objection  against  their 
tyrannous  acts,  that  we  were  not  represented  in  the  Legislature 
which  passed  them,  though  in  fact  such  representation  would 
be  merely  illusory  and  ineffectual;  and  on  the  other,  by  send- 
ing Ministerial  Agents,  artful,  plausible  and  wicked,  to  influ- 
ence the  debates  of  our  Legislatures,  and  give  a  voice  among 
the  immediate  representatives  of  the  people  on  matters  even 
of  the  most  internal  nature.  No  greater  insult  was  ever  of- 
fered to  the  common  sense  of  mankind.  Had  the  proposal, 
particularly   the   latter   part   of   it,    been    made   before    the 


390    The  Administration  of  Dependencies 

commencement   of   the  contest,  it  was  sufficient  in  itself  to 
have  roused  us  to  arms. 


The  proposition  to  establish  the  powers  of  the  Colonial 
Legislatures  in  certain  respects  was  objected  to  because 
the  claim  of  unconditional  and  unlimited  power  of  Parlia- 
ment was  not  given  up,  and  a  subsequent  Parliament 
might  overturn  any  Colonial  legislation. 

All  these  objections  reduced  themselves  to  two — that 
the  Colonies  would  never  consent  to  form  component 
parts  of  the  British  Empire,  so  long  as  Great  Britain 
claimed  unconditional  and  unlimited  power  over  them, 
and  that  they  would  never,  under  any  circumstances, 
consent  to  be  represented  in  the  House  of  Commons  or 
to  have  Great  Britain  represented  in  the  Colonial  Houses 
of  Representatives.  This  was  simply  another  way  of 
saying  that  the  States  of  the  American  Union  would 
never  again  become  component  parts  of  the  British  Em- 
pire, unless  that  Empire  was  declared  to  be  a  federal 
organism,  of  which  the  States  of  the  Union  were  Member- 
States,  and  would  never,  under  any  circumstances,  consent 
that  their  lands  and  populations  should  be  merged  with 
the  land  and  population  of  Great  Britain. 

The  proposition  of  the  British  Government  was  a 
proposition  to  convert  the  British  Empire  into  a  decen- 
tralized unitary  organism — that  is,  into  an  organism  in 
which  the  dependencies  would  derive  all  their  rights  from 
the  will  and  grant  of  the  Parliament  of  Great  Britain,  (not 
from  the  nature  of  things),  but  in  which  the  general 
principle  of  local  self-government  would  be  recognized, 
so  far  as  the  Parliament  saw  fit.  The  American  Union, 
through  its  Congress,  insisted  that  the  rights  of  the 
American  Colonies  were  natural  rights  to  be  political  per- 
sons, that  is.  States,  and  were  not  derived  from  the  will 
and  grant  of  the  Parliament  or  the  State  of  Great  Britain ; 
and  that  the  only  power  of  Great  Britain  was  to  adjudi- 


The  American  Empire  Declared,  1778    391 

cate  and  execute  the  unwritten  Constitution  of  the  Em- 
pire, which  defined  the  character  and  extent  of  their 
rights,  as  States ;  and  therefore  refused  to  assent  to  be- 
come parts  of  the  British  Empire  on  the  terms  proposed. 

The  negotiation  resulted  in  the  perception  of  the  great 
and  fundamental  distinction  upon  which  the  whole  con- 
ception of  the  Federal  Empire  was  based — the  distinction 
between  conditional  and  limited  power.  The  power  of 
the  Imperial  State  in  the  Federal  Empire  was  recognized 
as  being  not  a  limited,  but  a  conditional  power,  by  de- 
fining the  "subjection  "  of  the  American  Colonies  to 
Great  Britain  to  be  a  "conditional  subjection." 

The  whole  philosophy  of  the  Federal  Empire,  as  a  po- 
litical organism,  was  summed  up  in  the  first  pages  of  the 
pamphlet  in  the  following  words : 

The  right  of  a  State  over  its  own  members  has  been  brought 
into  question ;  and  there  are  not  wanting  authorities  to  show 
that  citizens  who  renounce  allegiance  and  protection  may  fly 
from  the  territories  of  the  State,  and  erect  new  independent 
Governments  in  new  countries.  Be  this  as  it  may,  the  point 
is  clear,  that  when  the  consent  of  Government  is  obtained, 
the  individuals  are  again  in  a  state  of  nature;  alike  free  either 
to  submit  to  a  society  existing,  or  to  establish  one,  as  their  in- 
terest or  their  inclination  may  prompt.  Here  then  is  the 
situation  of  those  who,  wearied  with  the  contentions  and 
oppressions  of  the  old  world,  boldly  threw  themselves  upon 
the  protection  of  Providence  to  explore  the  new,  and  traversed 
the  ocean  to  inhabit  a  wilderness  amid  nations  of  barbarous 
foes.  These  first  adventurers,  inspired  by  freedom,  supported 
by  industry,  and  protected  by  Heaven,  became  inured  to  toil, 
to  hardship,  and  to  war.  In  spite  therefore  of  every  obstacle, 
they  obtained  a  settlement;  and  then  turned  their  attention 
to  the  security  of  those  equal  rights  for  which  they  had  en- 
countered so  many  perils  and  inconveniences.  For  this 
purpose  they  framed  independent  Constitutions;  and  these, 
however  different  in  form,  were  all  inspired  by  the  same  spirit, 


392  The  Administration  of  Dependencies 

and  all  founded  on  that  eternal  maxim  of  free  Governments, 
that  no  man  can  be  bound  by  laws  to  which  he  does  not  con- 
sent. These  little  republics  soon  began  to  flourish  with  a 
vigor  and  beauty  adequate  to  the  radical  energy  of  their  first 
principle.  Of  consequence  they  became  a  desirable  object  to 
that  genius  of  enterprise  which  had  animated  the  monarchies 
of  Europe.  On  the  other  hand,  their  weakness  required  some 
ancient  trunk  to  support  them  for  a  while  in  the  storm  of 
ambition.  Our  ancestors,  therefore,  stimulated  by  their  neces- 
sities, and  seduced  by  ancient  habits  and  the  remembrance 
of  former  friendships  and  connections,  were  easily  prevailed 
on  to  subject  themselves  to  the  King  of  England,  in  conse- 
quence of  his  solemn  promise  to  afford  them  protection,  in 
common  with  all  his  other  subjects,  against  foreign  force  and 
internal  violence.  The  British  Colonies  then,  under  that 
name,  were  in  fact  so  many  independent  States,  whose  only 
political  connection  with  each  other,  and  with  the  several 
parts  of  the  British  Empire,  was  by  means  of  a  common 
Sovereign. 

As  a  free  people,  we  could  not  be  bound  by  the  arbitrary 
edicts  of  the  Prince:  by  still  stronger  reasons  we  could  not  be 
bound  by  the  more  arbitrary  edicts  of  our  fellow-subjects: 
and  of  consequence,  although  the  Prince  and  our  fellow- 
subjects  should  join  against  us  whatever  force  they  might 
acquire,  they  could  acquire  no  right  by  the  union. 

We  had,  on  every  principle,  a  right  to  become  indepen- 
dent, particularly  if  the  Crown  should  violate  those  contracts 
which  formed  the  basis  of  a  union.  For  let  us  suppose  that 
when  our  ancestors  quitted  Europe,  they  went  on  the  general 
principle  of  disclaiming  allegiance  to  and  protection  from  the 
several  States  of  which  they  were  subjects,  or  that  they  came 
hither  with  the  permission  of  those  States,  and  even  under  a 
contract  with  the  King  of  England.  And  when  they  arrived 
here,  let  us  suppose  that  they  established  independent  Govern- 
ments which  afterwards  became  subject  by  agreement,  or  that 
a  conditional  subjection  was  interwoven  in  their  frame; — still 
the  existence  of  the  contract  remains  unimpeached ;  or  even 


The  American  Empire  Declared,  1778    393 

on  a  supposition  that  they  had  actually  bargained  for  uncon- 
ditional submission,  still  that  bargain  would  have  been  from 
its  very  nature  void  as  to  them,  or  if  not  to  them,  at  least  to 
their  offspring;  and  of  consequence  from  the  principle  of  all 
free  societies,  the  contract  will  still  result.  And  it  being  evi- 
dent that  the  two  countries  not  only  had  not,  but  really  could 
not  have  (on  free  principles)  any  political  connection  but 
thro'  the  Prince,  so  that  right  [of  resistance  to  arbitrary  power] 
exercised  in  the  Revolution  of  England,  demonstrated  since, 
and  generally  admitted,  must  necessarily  draw  with  it  the 
right  to  independence,  which  is  above  stated. 

This  statement  may  thus  be  summarized : 

If  the  Colonies  were,  from  the  first  instant  of  their  settle- 
ment, independent  States  (which  was  the  anti-Imperialist 
theory  held  by  the  American  radicals),  their  subjection  to  the 
State  of  Great  Britain  was  necessarily  the  result  of  a  contract 
between  them  and  the  State  of  Great  Britain,  which,  being 
made  between  free  and  equal  political  persons,  and  intended 
to  create  a  permanent  relationship  between  them,  was  con- 
clusively presumed  to  have  been  made  on  terms  just  and 
beneficial  to  both.  Their  continuance  in  the  relatijonship  of 
subjection  was,  therefore,  conditional  upon  both  parties  agree- 
ing concerning  the  just  terms  of  the  contract,  or,  in  case  of 
disagreement,  upon  a  just  and  impartial  adjudication  of  its 
terms  and  a  fulfilment  of  the  contract,  as  so  adjudicated,  by 
the  State  of  Great  Britain. 

If  the  Colonies  were,  from  the  first  instant  of  their  settle- 
ment, dependent  States  —  if  "a  conditional  subjection  was 
interwoven  in  their  frame  " — (which  was  the  Federal-Imperial- 
ist theory  held  by  the  American  conservatives),  their  sub- 
jection was  under  a  contract  "  implied  in  fact,"  that  is,  implied 
from  the  circumstances,  upon  the  same  terms  as  would  have 
been  agreed  upon  by  the  parties,  had  they  treated  on  an 
equality,  and  was  conditional  in  exactly  the  same  way  as  if  the 
contract  had  been  between  equal  parties. 

If  the  Colonies  were  States  which,  at  the  time  of  their  settle- 
ment, agreed  to  unconditionally  subject  themselves  to  the  will 


394    The  Administration  of  Dependencies 

of  the  State  of  Great  Britain  (which  was  the  theory  of  the 
British  Government),  this  contract  was  either  entirely  void,  or 
void  as  to  the  successors  of  those  who  made  it,  and  a  contract 
"  resulted,"  that  is,  was  implied  by  law  and  justice,  out  of  the 
existing  circumstances,  as  the  result  of  the  avoidance  of  the 
original  contract,  on  the  same  terms  as  would  have  been  agreed 
upon  by  the  parties  had  they  treated  on  an  equality.  Their 
subjection  in  this  case,  also,  was  conditional  in  exactly  the 
same  way  as  if  the  contract  had  been  between  equal  parties. 

The  relationship  was  therefore  not  through  the  King  as  a 
natural  person,  who,  in  case  of  disagreement  between  the 
parties  concerning  the  terms  of  the  various  contracts  and  the 
common  contract,  forming  the  Constitution  of  the  Empire, 
could  only  exercise  the  influence  of  a  friendly  third  person  or 
Mediator,  but  through  the  King  in  his  official  capacity — "  the 
Prince  "  or  "the  common  Sovereign,"  as  Morris  expressed  it — 
who  had  actual  power  in  adjudicating  the  terms  of  the  con- 
tracts forming  the  Constitution  of  the  Empire,  as  the  Disposer 
of  the  affairs  of  the  Empire,  and  of  executing  them  on  behalf 
of  the  State  of  Great  Britain,  by  analogy  to  the  power  of 
making,  interpreting  and  executing  treaties  with  foreign  States, 
which  he  exercised  as  the  expert  part — the  Crown — of  the 
State  of  Great  Britain. 

As  the  Parliament  of  Great  Britain  was  not  mentioned 
in  this  statement,  it  was  necessarily  implied  that  its  only 
power  was  to  effectuate,  by  rules  and  regulations  in 
the  form  of  laws,  the  adjudications  of  the  Crown  con- 
cerning what  was  needful  to  be  done  by  Great  Britain, 
as  the  Imperial  State,  in  the  performance  of  its  part  of 
the  contract  with  the  Colonies,  as  Member-States,  and 
that  it  had  no  direct  power  to  interpret  or  change  the 
contract,  being  from  its  nature  unfitted  to  perform  func- 
tions of  a  kind  requiring  expert  knowledge  and  inves- 
tigation. It  was  equally  implied  in  the  statement, 
however,  that  the  Colonial  Assemblies  could  not  inter- 
pret or  change  the  terms  of  this  contract,  they  being 


The  American  Empire  Declared,  1778    395 

likewise  unfitted  from  their  nature  to  perform  functions 
of  this  kind. 

This  definition  of  the  "subjection  "  of  the  Colonies  as 
a  "conditional  subjection"  by  Gouverneur  Morris  entitled 
him  to  be  regarded  as  the  leader  of  thought  in  all  matters 
respecting  the  American  Empire.  He  had  gone  deeper 
than  any  one  else,  and  had  stated  the  universal  principle. 
The  power  of  the  Imperial  State  was  conditional,  he  said, 
over  independent  States  which  became  dependent. 
Hence  it  was  conditional  over  States  which  were  volun- 
tarily dependent.  It  was  conditional,  he  said,  over  those 
which  were  dependent  from  their  first  settlement.  Hence 
it  was  conditional  over  colonies.  It  was  conditional,  he 
said,  even  over  States  which  had  once  accepted  a  relation- 
ship of  absolute  and  unconditional  submission.  Hence  it 
was  conditional  over  conquests. 

This  conditional  or  contractual  subjection  which  Morris 
claimed  was  the  ultimate  result  of  every  possible  theory 
of  the  original  relationship  between  Great  Britain  and  the 
American  Colonies  was  a  conditional  or  contractual  sub- 
jection of  them,  as  States — that  is,  a  federal  subjection, 
since  "federal  "  is  the  word  particularly  appropriated  to 
express  the  idea  of  "contractual  between  States."  The 
final  word  of  the  American  Union  to  Great  Britain,  there- 
fore, was  a  Declaration  that  the  States  of  the  Union 
would  never  consent  to  anything  less  than  a  federal  sub- 
jection to  the  State  of  Great  Britain — that  is,  a  contrac- 
tual or  conditional  subjection,  not  of  the  inhabitants  of 
the  States  of  the  Union  to  the  State  of  Great  Britain,  or 
to  its  Government,  or  to  its  inhabitants,  but  of  the  States 
of  the  Union,  as  States,  to  the  State  of  Great  Britain. 

By  this  Declaration,  made  almost  contemporaneously 
with  the  Declaration  contained  in  the  French  Treaty  of 
Alliance  that  the  American  Union  proposed  to  hold  its 
conquests  as  dependencies,  the  American  Union  bound 
itself  and  its  successors,  forever,  by  all  the  obligations 


39^    The  Administration  of  Dependencies 

of  national  good  faith,  to  treat  every  community  ex- 
ternal to  and  connected  with  the  Union,  as  a  State  in  a 
relationship  of  federal  subjection. 

The  statement  of  the  reasons  upon  which  the  Colonies 
declared  themselves  independent  contained  in  the  Obser- 
vations on  the  American  Revolution,  and  approved  by 
Congress,  may  be  called  the  Declaration  of  Independence 
of  1778.  As  a  later  document,  it  interprets  and  governs 
the  Declaration  of  1776,  where  that  document  is  ambigu- 
ous, as  it  is  in  the  much-discussed  passage  of  the  pream- 
ble which  states,  as  a  self-evident  truth,  that,  in  order  to 
secure  to  the  individual  the  natural  rights  of  life,  liberty, 
and  the  pursuit  of  happiness,  "Governments  are  insti- 
tuted among  men,  deriving  their  just  powers  from  the 
consent  of  the  governed." 

This  statement  is  capable  of  being  interpreted  as  mean- 
ing that  Governments  derive  their  just  powers  from  the 
mere  will  of  the  governed,  or  that  they  derive  their  just 
powers  from  an  agreement,  compact,  or  contract  {con- 
sensus)  between  the  Government  and  the  governed.  The 
Declaration  of  1778  settled  this  ambiguity,  by  declaring 
that  the  theory  of  America  was  that  all  Governments  de- 
rive their  just  powers  from  an  agreement,  compact,  or 
contract  between  the  Government  and  the  governed. 
The  Declaration  of  1776  stated  the  axiom  of  the  original 
freedom  and  equality  of  all  human  beings,  and  advanced 
from  that  to  the  corollary  that  Governments  derive  their 
just  powers  from  the  consent  of  the  governed.  The 
Declaration  of  1778  supplied  the  intermediate  corollaries 
between  the  axiom  and  that  corollary.  Because  all  men 
were  originally  free  and  equal,  it  followed  as  a  corollary 
(since  the  proposition  that  a  free  and  equal  human  being 
could  ever  be  subject  to  the  mere  will  of  another  free  and 
equal  human  being  is  a  self-evident  contradiction  and  ab- 
surdity), that  all  human  relationships  resulted  from  a 
meeting  of  wills, — that  is,  from  a  compact  or  contract 


The  American  Empire  Declared,  1778    397 

between  the  persons  in  relationship.  As  Governments 
were  human  beings  and  the  governed  also  human  beings, 
it  necessarily  followed  that  all  relations  between  Govern- 
ments and  the  governed  were  founded  on  agreement, 
compact,  or  contract  {consensus)  between  the  Government 
and  the  governed. 

The  Declaration  of  1778  also  declared  that  the  contract 
which  was  the  basis  of  the  relationship  between  the  Gov- 
ernment and  the  governed  might  (like  every  other  con- 
tract creating  a  human  relationship)  be  express  or  implied 
— and,  in  the  nature  of  things,  any  contract  may  be 
written  or  unwritten. 

An  agreement  between  the  Government  and  the  gov- 
erned is  a  "Constitution  "  of  government.  Though  writ- 
ten Constitutions  usually  are  given  the  unilateral  form, 
so  that  they  appear  as  powers  of  attorney  from  the  gov- 
erned to  the  Government,  they  would  more  properly  be 
given  the  bilateral  form.  They  are,  in  fact,  given  this 
bilateral  form  when  they  provide  for  the  formal  accept- 
ance, by  the  Government,  of  the  Constitution,  by  re- 
quiring the  persons  who  form  the  Government  to  take  an 
oath  to  fulfil  the  Constitution. 

The  Declaration  of  1778  admitted,  by  necessary  impli- 
cation, that,  if  the  Constitution  was  reduced  to  writing, 
the  terms  of  the  writing  governed  as  in  other  cases  of 
contracts.  If  not,  the  contract  was  to  be  proved  by  the 
words  and  acts  of  the  parties  or  was  to  be  implied  out  of 
the  circumstances,  and  in  case  of  disagreement  between 
the  parties  concerning  the  interpretation  of  the  contract, 
or  concerning  what  was  just  and  reasonable,  when  the 
parties  left  the  terms  indefinite,  it  was  to  be  interpreted 
and  adjudicated  by  an  impartial  expert  tribunal. 

As  applied  to  the  American  Empire,  the  statement  in 
the  Declaration  of  Independence  that,  in  order  to  secure 
to  the  individual  his  natural  rights,  "Governments  are  in- 
stituted among  men,  deriving  their  just  powers  from  the 


39^  The  Administration  of  Dependencies 

consent  of  the  governed,"  required  that  the  State  of 
America  (whether  called  by  the  name  of  "the  American 
Union,"  "the  United  States  assembled,"  or  "the  United 
States  of  America,"  or  by  any  other  name),  when  occu- 
pying the  position  of  the  Government  for  other  States,  as 
its  dependencies,  should  regard  itself  as  being  in  a  rela- 
tionship of  constitutional  connection  with  them,  so  that 
all  together  would  constitute  a  Federal  Empire,  in  which 
the  American  Union  would  be  the  Imperial  State  and 
would  act  under  an  unwritten  Constitution  of  the  Empire, 
supreme,  for  Imperial  purposes,  over  its  own  Constitution 
and  the  Constitutions  of  the  Member-States,  which  it  was 
obligated  to  interpret,  adjudicate,  and  execute,  for  the 
benefit  of  all  parties  concerned. 

Neither  the  Declaration  of  Independence  of  1776  nor 
that  of  1778  had  anything  to  say  concerning  the  manner 
in  which  the  Government  should  be  distinguished  from 
the  governed.  They  did  not  say  that  Governments  de- 
rived their  original  existence  from  the  will  and  act  of  the 
governed,  but  only  that  they  derived  their  "just  "  powers 
from  the  "consent  "  of  the  governed.  In  both  these  in- 
struments, the  relationship  of  Government  and  governed 
was  taken  for  granted,  and  they  were  merely  concerned 
with  declaring  the  duties  of  Governments.  They  ther^e- 
fore  had  nothing  to  say  concerning  whether,  in  a  given 
case,  the  American  Union  should  or  should  not  act  as 
the  Government  for  other  States.  They  declared,  how- 
ever, that  if  Great  Britain  had  been  willing  to  admit  that 
its  powers  over  the  American  Colonies  were  exercised 
under  an  unwritten  Constitution  securing  to  the  Colonies 
their  rights  as  States,  and  to  the  inhabitants  of  the  Colo- 
nies their  rights  as  individuals,  and  had  in  fact  so  exer- 
cised them,  its  exercise  of  power  over  the  Colonies  would 
have  been  just.  As  Great  Britain  had  elected  itself  the 
Imperial  State  of  the  British  Empire,  the  Declaration  of 
Independence    necessarily    implied    that    the   American 


The  American  Empire  Declared,  1778     399 

Union  might  justly  elect  itself  the  Imperial  State  of  the 
American  Empire  if  it  saw  fit,  provided  the  American 
Empire  were  recognized  as  a  Federal  Empire. 

From  the  moment  of  the  issuance  of  the  Declarations 
of  Independence  of  1776  and  1778,  the  obligations  of  the 
American  Union  could  not  be  fulfilled  by  merely  grant- 
ing to  its  dependencies,  of  its  mere  will  and  favor,  local 
self-government  as  municipal  corporations,  but  could  only 
be  fulfilled  by  recognizing  them  as  States  having,  by  the 
nature  of  things,  the  fullest  and  most  complete  rights  of 
statehood  consistent  with  the  welfare  of  the  whole  Ameri- 
can Federal  Empire,  composed  of  the  American  Union,  as 
the  Imperial  State,  and  its  dependencies.  How  complete 
the  rights  of  statehood  of  the  federally-subject  States — 
the  Member-States  of  the  American  Federal  Empire, — 
should  be,  it  was  for  the  American  Union,  as  the  Imperial 
State,  to  adjudicate,  and  by  its  dispositions,  made  by  its 
impartial  and  expert  tribunal,  fairly  and  after  opportunity 
of  the  federally-subject  States  to  be  heard,  they  were 
bound,  in  equity  and  good  conscience. 


CHAPTER   XXI 

THE   DISPOSITIVE   POWER,    I779-I783 

THE  Congress  of  the  American  Union  came  into  ex- 
istence as  a  body  of  delegates  from  the  Colonies, 
assembled  to  devise  means  for  making  an  effectual 
protest  against  the  claims  of  Great  Britain,  as  the  Im- 
perial State.  After  the  Declaration  of  Independence,  it 
was  continued  by  common  consent,  and  without  any  ex- 
press definition  of  its  powers.  What  its  powers  were 
could  only  be  ascertained  from  a  consideration  of  what  the 
powers  of  such  an  assembly,  under  such  circumstances, 
ought,  in  the  nature  of  things,  to  be.  There  seems,  how- 
ever, to  have  been  little  doubt  felt,  in  the  Congress  itself, 
concerning  the  nature  of  its  powers.  It  seems  to  have 
been  the  unanimous  sentiment  that  the  Congress  was  the 
successor  of  the  King  of  Great  Britain  in  his  official  ca- 
pacity. It  is  beyond  the  limits  of  the  study  here  under- 
taken to  show  how  this  conception  of  the  power  of 
Congress  was  applied  as  between  the  Congress  and  the 
States  of  the  Union,  though  that  it  was  applied  admits  of 
no  doubt, — the  powers  given  to  Congress  by  the  Articles 
of  Confederation  being  almost  exactly  those  which  the 
King  in  Council  exercised  or  had  exercised  in  the  State 
of  Great  Britain.  Bancroft,  in  his  History  of  the  United 
States,  has  referred  to  this  fact,  in  his  chapter  on  the 
Articles  of  Confederation.  Prefacing  his  examination  of 
the  Articles,  he  says: 

According  to  the  American  theory,  the  unity  of  the  Colonies 
had,  before  the  Declaration  of  Independence,  resided  in  the 

400 


The  Dispositive  Power,  1 779-1 783    401 

British  King.  The  Congress  of  the  United  States  was  the 
King's  successor,  and  it  inherited  only  such  powers  as  the 
Colonies  themselves  acknowledged  to  have  belonged  to 
the  Crown, 

That  the  Congress  regarded  itself  as  authorized  to 
exercise  the  same  powers  over  the  dependencies  of  the 
Union  as  were  exercised  by  the  King  in  Council  over  the 
American  Colonies  prior  to  1763  is  proved  by  various 
acts  and  documents. 

The  memorial  of  the  Indiana  Company  filed  September 
14,  1779,  asked  that  Congress  direct  an  order  against 
Virginia 

to  stay  the  sale  of  the  lands  in  question,  till  Virginia,  as  well  as 
the  memorialists,  can  be  heard  before  this  honorable  House 
and  the  whole  rights  of  the  owners  of  the  said  tract  of  land 
called  Vandalia,  of  which  Indiana  is  a  part,  shall  be  ascer- 
tained in  such  a  manner  as  may  tend  to  support  the  Sovereignty 
of  the  United  States  and  the  rights  of  individuals  therein. 

The  committee  of  Congress  reported,  on  the  remon- 
strance of  Virginia,  that  they  could  not  find  "  any  such 
distinction  between  the  question  of  the  jurisdiction  and 
the  merits  of  the  cause,  as  to  recommend  any  decision 
upon  the  first  separately  from  the  last  " — in  other  words, 
that  the  whole  question  was  one  of  jurisdiction. 

Franklin,  in  his  memorial  on  behalf  of  the  Vandalia 
Company,  filed  in  February,  1780,  used  the  word  "Sov- 
ereignty" to  describe  the  power  of  the  Union  over  the 
Western  region.     His  words  were: 

As  your  Honors  have  now  succeeded  to  the  Sovereignty  of  the 
territory  in  question^  your  memorialists  confide  that  you  will 
think  it  just  and  reasonable  to  consider  the  said  lands  as  sub- 
ject to  such  contracts  and  dispositiotis  as  were  made  concerning 
them  while  they  confessedly  belonged  to  the  British  Crown; 
and  that  your  memorialists  and  their  associates,  who  have  ever 

a6 


402  The  Administration  of  Dependencies 

been  ready  to  fulfil  their  parts  of  the  said  contract,  may  not 
sufifer  such  great  injury  by  the  change  of  Sovereignty  as  to  be 
deprived  of  their  equitable  rights  to  the  said  lands. 

He  asked  that  the  lands  be  granted  to  the  persons  in- 
terested in  the  Vandalia  Company  either  upon  the  terms 
and  conditions  of  their  contract  with  Great  Britain  ap- 
proved by  order  of  the  King  in  Council  (which  contract, 
as  has  been  said,  was  ready  for  delivery  with  the  excep- 
tion of  affixing  the  seals  when  the  Revolution  broke  out), 
'*  or  upon  such  other  terms  as  may  be  convenient  to  the 
interests  of  the  United  States  and  not  injurious  to  your 
memorialists  and  their  associates." 

The  form  of  this  memorial  was  exactly  such  as  might 
have  been  addressed  to  the  King  in  Council  before  the 
■Revolution,  and  the  word  "  Sovereignty  "  plainly  meant 
the  power  which  the  King,  as  Sovereign,  had  previously 
exercised  and  not  "  sovereign  power  "  in  the  sense  of 
unlimited,  unconditional  power. 

The  first  statement  of  the  Congress  on  this  subject  was 
contained  in  the  Instructions  given  by  it  on  October 
17,  1780,  to  the  Ministers  Plenipotentiary  of  the  United 
States  at  the  Courts  of  France  and  Spain,  regarding  the 
claims  of  Spain  to  the  Western  region.  These  Instruc- 
tions were  reported  by  a  committee  consisting  of  James 
Madison,  John  Sullivan  of  New  Hampshire,  and  James 
Duane  of  New  York.  Spain,  on  January  31,  1780, 
through  the  French  Minister,  had  expressed  a  willing- 
ness to  enter  into  a  treaty  of  alliance  with  the  United 
States  and  France,  providing  the  United  States  would  ad- 
mit that  the  western  limits  of  the  Confederation  extended 
only  so  far  as  there  had  been  actual  settlements  from  the 
Colonies  prior  to  the  Proclamation  of  the  King  made  in 
1763,  closing  the  Western  region  to  settlement.  Spain 
based  its  claim  on  the  propositions  that  the  United  States 
had  no  possession  of  the  region  beyond  those  limits  be- 


The  Dispositive  Power,  1 779-1 783    403 

fore  the  Revolution  and  that  they  could  not  claim  "  in 
the  right  of  sovereignty  of  Great  Britain  "  because  they 
had  "  abjured  the  dominion  "  of  that  country. 

To  this  the  Ministers  at  the  Courts  of  France  and 
Spain  were  instructed  to  reply  that  the  Mississippi  was 
the  boundary  of  the  United  States  on  the  west  because 
"  by  the  definitive  Treaty  of  Paris  of  1763,  Article 
Seventh,  all  the  territory  now  claimed  by  the  United 
States  was  expressly  and  irrevocably  ceded  to  the  King 
of  Great  Britain ;  and  the  United  States  are,  in  conse- 
quence of  the  revolution  in  their  government,  entitled 
to  the  benefits  of  that  cession." 

The  Instructions  then  proceeded : 

The  first  of  these  positions  is  proved  by  the  Treaty  itself. 
To  prove  the  last,  it  must  be  observed  that  it  is  a  fundamental 
principle  in  all  lawful  Governments,  and  particularly  in  the 
Constitution  of  the  British  Empire,  that  all  the  rights  of  Sov- 
ereignty are  intended  for  the  benefit  of  those  from  whom  they 
are  derived,  and  over  whom  they  are  exercised.  It  is  known 
also  to  have  been  held  for  an  inviolable  principle  by  the  United 
States,  while  they  remained  a  part  of  the  British  Empire,  that 
the  Sovereignty  of  the  King  of  England,  with  all  the  rights  and 
powers  included  in  it,  did  not  extend  to  them  in  virtue  of  his 
being  acknowledged  and  obeyed  as  King  by  the  people  of 
England,  or  of  any  other  part  of  the  Empire,  but  in  virtue  of 
his  being  acknowledged  and  obeyed  as  King  of  the  people 
of  America  themselves;  and  that  this  principle  was  the  basis, 
first  of  their  opposition  to,  and  finally  of  the  abolition  of  his 
authority  over  them.  From  these  principles  it  results,  that  all 
territory  lying  within  the  limits  of  these  States,  as  fixed  by  the 
Sovereign  himself,  was  held  by  him  for  their  particular  benefits, 
and  must,  equally  with  his  other  rights  and  claims  in  quality  of 
their  Sovereign,  be  considered  as  having  devolved  on  t/iem,  in  con- 
sequence of  their  resumption  of  the  Sovereignty  to  themselves. 

As  further  evidence  in  support  of  the  opinion  of  the 
Congress   that    their   powers   were   the   same   as   those 


404  The  Administration  of  Dependencies 

exercised  prior  to  the  Revolution  by  the  King  in  Council, 
there  may  be  cited  the  report  made  on  August  i6,  1782, 
of  a  committee  consisting  of  Daniel  Carroll  of  Mary- 
land, Edmund  Randolph  of  Virginia,  and  Joseph  Mont- 
gomery of  Pennsylvania,  appointed  to  report  facts  and 
observations  to  be  referred  to  the  Secretary  for  Foreign 
Affairs,  "to  be  by  him  digested,  completed  and  trans- 
mitted to  the  Ministers  Plenipotentiary  for  negotiating 
a  peace,  for  their  information  and  use."  In  their  report, 
the  committee  said: 

If  the  vacant  lands  cannot  be  demanded  upon  the  titles  of 
individual  States,  f^ey  are  to  be  deemed  to  have  been  the  property 
of  his  Britannic  Majesty^  as  Sovereign  of  the  thirteen  Colonies 
immediately  before  the  Revolution^  and  to  be  devolved  upon  the 
United  States  collectively  taken.  The  character  in  which  he 
was  so  seized  was  that  of  King  of  the  thirteen  Colonies  col- 
lectively taken.  Being  stripped  of  this  character,  his  rights 
descended  to  the  United  States  for  the  following  reasons: 
I.  The  United  States  are  to  be  considered  in  many  respects  as  one 
undivided  independent  nation,  inheriting  those  rights  which  the 
King  of  Great  Britain  enjoyed  as  not  appertaining  to  any  one  par- 
ticular State,  while  he  was  what  they  are  now,  the  Superintending 
Governor  of  the  whole.  2.  The  King  of  Great  Britain  has 
been  dethroned  as  King  of  the  United  States,  by  the  joint 
efforts  of  the  whole.  3.  The  very  country  in  question  has 
been  conquered  through  the  means  of  the  common  labors  of 
the  United  States. 

While  this  report  was  not  adopted,  it  is  evident  that 
it  was  not  because  it  did  not  state  the  views  of  Congress, 
but  because  it  was  not  thought  proper  at  that  time, 
while  the  States  were  still  hesitating  about  ceding  their 
rights  in  the  Northwest  Territory,  for  Congress  to  take  a 
definite  stand,  which  might  prejudice  the  claims  of  the 
States  against  the  Union.  There  is  every  reason  to  be- 
lieve that  if   the  claims  of   the    States  had  not  at  the 


The  Dispositive  Power,  1 779-1 783    405 

moment  conflicted  with  those  of  the  Union,  this  decla- 
ration of  the  rights  of  the  Union  over  the  Northwest 
Territory  would  have  been  unanimously  adopted. 

Gouverneur  Morris,  in  a  letter  of  January  i,  1783,  to 
John  Jay,  who  was  then  in  Paris,  and  who  was  acting 
with  Adams  and  Franklin  in  negotiating  the  definitive 
Treaty  of  Peace  with  Great  Britain,  said: 

You  and  I  differ  about  the  Western  country,  but  you  and 
your  Sovereign  are  of  the  same  opinion. 

On  September  13,  1783,  while  Congress  was  consider- 
ing the  report  on  the  conditional  cession  of  178 1  made  by 
Virginia,  and  there  appeared  to  be  some  probability  that 
it  would  yield  to  the  conditions,  Maryland  presented  a 
remonstrance  of  its  Legislature,  in  which  it  was  declared  : 

The  United  States  have  succeeded  to  the  Sovereignty  over  the 
Western  territory,  and  are  thereby  vested  as  one  undivided  and 
independent  nation,  with  all  and  every  power  and  right  exercised 
by  the  King  of  Great  Britain  over  the  said  territory. 

In  the  latter  part  of  1784  and  the  early  part  of  1785, 
treaties  were  made  with  the  Indians  whereby  a  strip  of 
land  constituting  about  the  east  quarter  of  the  present 
State  of  Ohio  was  opened  to  settlement  by  the  extinguish- 
ment of  the  Indian  title.  The  principal  one,  which  was 
with  the  Wyandot,  Delaware,  Chippewa,  and  Ottawa 
Indians,  was  expressed  in  language  which  showed  that 
the  American  Union  regarded  itself  as  a  single  nation, 
acting  as  the  Sovereign  and  Imperial  State  over  the 
Indian  tribes,  as  native  States,  which  stood  to  it  in  the 
relationship  of  constitutional  protectorates.  The  second 
Article  of  the  Treaty  provided  that : 

The  said  Indian  nations  do  acknowledge  themselves  and  all 
their  tribes  to  be  under  the  protection  of  the  United  States, 
and  of  no  other  Sovereign  whatsoever. 


4o6  The  Administration  of  Dependencies 

John  Jay,  as  Secretary  for  Foreign  Affairs,  on  Octo- 
ber 3,  1786,  in  a  report  to  Congress  concerning  the  right 
of  the  States  to  interfere  with  the  execution  of  the  pro- 
visions of  the  Treaty  of  Peace,  said : 

The  rights  to  make  war,  to  make  peace,  and  to  make  treaties 
appertaining  exclusively  to  the  National  Sovereign — that  is,  to 
Congress — your  Secretary  is  of  opinion  that  the  thirteen  State 
Legislatures  have  no  more  authority  to  exercise  these  powers 
or  pass  acts  of  Sovereignty  on  these  points,  than  any  thirteen 
individual  citizens. 

On  April  13,  1787,  the  Congress  agreed  to  a  letter, 
drafted  by  Jay,  to  be  sent  to  the  Legislatures  of  the 
States,  in  vi^hich  it  was  said : 

The  thirteen  independent  sovereign  States  have,  by  express 
delegation  of  powers,  formed  and  vested  in  us  a  general, 
though  limited  Sovereignty,  for  the  general  and  national  pur- 
poses specified  in  the  Confederation.  In  this  Sovereignty  they 
cannot  participate,  except  by  their  delegates,  nor  with  it  have 
concurrent  jurisdiction;  for  the  ninth  Article  of  the  Con- 
federation most  expressly  conveys  to  us  the  sole  and  exclusive 
right  and  power  of  determining  on  war  and  peace  and  of 
entering  into  treaties  and  alliances  etc. 

Treaties  derive  their  sole  obligation  from  being  compacts 
between  tlu  Sovereign  of  this  and  the  Sovereign  of  another 
Nation. 

It  seems,  therefore,  to  be  clear  beyond  a  doubt  that 
the  theory  of  the  Congress  and  of  the  separate  State 
Legislatures  was  that  the  American  Union  was  the 
Sovereign — the  Sovereign  State — of  the  Western  region, 
and  that  the  Congress,  as  the  sole  agent  and  representa- 
tive of  the  Sovereign  State,  fulfilled  its  functions  and 
was,  therefore,  the  effective  and  actual  Sovereign  of  the 
Western  region.     The    power  of   the   Union    over   this 


The  Dispositive  Power,  1 779-1 783    407 

region  measured  the  power  of  the  Congress  over  the  re- 
gion, on  the  theory  that  the  Union  could  grant  to  the 
Congress  as  its  agent  only  such  power  as  it  itself  had. 
As  all  power  exercised  by  a  Sovereign  was  recognized  as 
being  conditional  power,  the  power  of  the  Union,  and  of 
the  Congress  as  its  agent  and  representative,  over  the 
Western  region,  was  recognized  as  being  conditional — 
that  is,  as  being  a  power  of  disposition. 

That  the  Congress  regarded  itself,  at  least  from 
the  moment  that  the  Articles  of  Confederation  were 
signed,  as  the  constitutional  Sovereign  of  the  Union,  ex- 
ercising powers  over  the  States  of  the  Union,  as  persons, 
and  over  their  inhabitants,  which  were  in  their  character 
essentially  judicial  and  conditional,  is  shown  by  the 
names  which  they  adopted,  immediately  upon  the  sign- 
ing of  the  Articles  of  Confederation,  to  designate  their 
official  acts.  These  names  were  "ordinances"  and 
"resolutions."  The  former  was  used  to  designate  those 
actions  of  the  Congress  which  were  of  general  and  public 
interest,  while  the  latter  was  used  to  designate  those  ac- 
tions which  related  to  matters  of  special  or  local  interest, 
or  which  expressed  the  sentiments  of  the  Congress  on 
any  subject. 

The  first  action  of  the  Congress  which  it  described  as 
an  "ordinance  "  was  taken  on  March  27,  1781,  less  than  a 
month  after  the  Articles  of  Confederation  were  signed. 
The  preamble  of  this  ordinance,  which  was  entitled  "An 
Ordinance  Relative  to  the  Capture  and  Condemnation  of 
Prizes,"  was  worded  in  such  a  manner  as  to  show  that  the 
Congress  regarded  its  powers  as  essentially  judicative. 
It  read : 

The  United  States  in  Congress  assembled,  taking  into  con- 
sideration the  implacable  war  waged  against  them  by  the  King 
of  Great  Britain,  a.ndi  judging  it  inconsistent  with  their  dignity 
as  a  free  and  independent  nation  any  longer  to  continue  the 


4o8  The  Administration  of  Dependencies 

indulgence  and  exemptions  to  any  of  the  subjects  of  their 
enemy,  who  is  absolutely  bent  upon  their  destruction  or  sub- 
jugation, have  thought  it  proper  to  ordain  and  order,  and  it  is 
hereby  ordained  and  ordered  that  henceforward  general  reprisals 
be  granted  against  the  ships,  goods  and  subjects  of  the  King 
of  Great  Britain. 

The  word  "ordinance"  is  plainly  a  translation  of  the 
French  word  ordonnance.  The  Grand  Vocabulaire  Fran- 
cois, says  that  the  word  ordonnance  came  into  common 
use  in  1287,  during  the  time  of  Philippe  le  Bel.  It 
adds  that  "it  has  been  finally  established  in  usage  to 
express  in  general  every  law  made  by  the  Sovereign  {le 
Prince)."     In  another  place  it  says: 

Ordonnance  is  used  particularly  of  the  laws  and  constitutions 
of  the  Sovereign  Prince  {Prince  Souverain)  .  .  .  The 
power  of  making  new  ordinances  .  .  .  and  of  changing 
and  modifying  them,  belongs  in  France  to  the  King  only. 
But  as  one  cannot  pay  too  much  attention  to  the  framing  of 
ordinances,  our  Kings  have  the  custom  of  taking  the  advice 
of  learned  and  distinguished  persons  who  are  of  their  Council. 

The  ancient  ordinances  were  made  in  two  ways:  some  were 
resolved  upon  and  decreed  {arrStees)  in  the  Privy  and  Secret 
Council  of  the  King ;  those  which  appeared  to  be  more  impor- 
tant were  deliberated  {deliber^es)  in  Assemblies  of  larger 
number. 

The  Grand  Vocabulaire  gives  as  the  original  meaning 
of  X.hQ  "word  ordonnance  the  following:  "[Latin]  'dispo- 
sitio.'  Disposition,  arrangement  {disposition,  arrange- 
ment)." It  gives  as  the  original  meaning  of  the  verb 
ordonner,  "[Latin]  'disponere. '  To  arrange,  dispose, 
set  in  order  {ranger,  disposer,  niettre  en  ordre)." 

The  word  "resolution  "  was  a  plain  translation  of  the 
French  word  *' arriti,"  which  meant,  literally,  a  thing  de- 


The  Dispositive  Power,  1 779-1 783    409 

termined  upon  after  deliberation,  by  an  assembly  which 
was  advisory  to  the  King,  or  by  an  administrative  official 
or  body,  as  preliminary  to  administrative  action.  The 
word  "arrSt^"  bore  a  close  relationship  to  the  word 
"arrit"  meaning  the  judgment  or  decree  of  a  court  of 
law  or  equity,  both  being  derived  from  the  same  verb, 
" arrSter,"  meaning,  literally,  "to  arrest  or  bring  to  a 
stop,"  and  derivatively,  "to  resolve,  to  determine,  or  to 
decide." 

The  Congress,  by  adopting  the  words  "ordinances  " 
and  "resolutions  "  to  describe  its  acts,  therefore,  adopted 
the  French  view  that  every  act  done  by  it  as  the  Sov- 
ereign was  an  act  done  in  pursuance  of  an  unwritten 
supreme  law,  which  it  was  under  obligation  to  adjudicate 
and  execute. 

The  adoption  of  the  expression  "dispose  of"  to  de- 
scribe the  power  of  the  Union  over  its  dependencies 
seems  to  have  come  about  in  the  following  manner: 

On  May  21,  1779,  Maryland,  which  was  the  only  State 
which  at  that  time  had  not  signed  the  Articles  of  Con- 
federation, filed  in  Congress  a  Declaration,  together  with 
Instructions  to  its  delegates  in  Congress,  adopted  by  its 
Legislature.     In  the  Instructions  the  Legislature  said : 

We  are  convinced,  policy  and  justice  require  that  a  country 
unsettled  at  the  commencement  of  this  war,  claimed  by  the 
British  Crown,  and  ceded  to  it  by  the  Treaty  of  Paris,  if 
wrested  from  the  common  enemy  by  the  blood  and  treasure 
of  the  thirteen  States,  should  be  considered  as  a  common 
property,  subject  to  be  parcelled  out  by  Congress  into  free, 
convenient  and  independent  Governments,  in  such  manner 
and  at  such  times  as  the  wisdom  of  that  Assembly  shall  here- 
after direct. 

Thus  convinced,  we  should  betray  the  trust  reposed  in  us 

by  our  constituents,  were  we  to  authorize  you  to  ratify  on  their 

behalf  the  Confederation,,?^^/^^^  //  be  farther  explained.     We 

do  instruct  you  not  to  agree  to  the  Confederation, 


4IO  The  Administration  of  Dependencies 

unless  an  Article  or  Articles  be  added  thereto  in  conformity 
with  our  Declaration.  Should  we  succeed  in  obtaining  such 
Article  or  Articles,  then  you  are  fully  empowered  to  accede  to 
the  Confederation. 

The  word  "  independent  "  cannot,  of  course,  be  read 
literally.  To  parcel  out  a  Comnnon  property  into  inde- 
pendent Governments,  using  "  independent "  in  its 
ordinary  sense,  is  a  self-evident  absurdity,  since  the 
conception  of  parcelling  out  is  inevitably  associated  with 
the  idea  of  dependence.  "  Independent  "  here  plainly 
means  "  conditionally  dependent,"  or  "  federally  de- 
pendent," and  not  *'  wholly  without  dependence," 
which  is  its  usual  meaning.  This  same  ambiguity  in  the 
word  "  independent"  will  be  noticed  frequently  in  the 
language  of  the  period. 

In  the  Declaration,  the  Legislature  of  Maryland  said : 

We  will  accede  to  the  Confederation^  provided  an  Article  or 
Articles  be  added  thereto,  giving  full  power  to  the  United  States 
in  Congress  assembled  to  ascertain  and  fix  the  western  limits 
of  the  States  claiming  to  extend  to  the  Mississippi  or  South 
Sea,  and  expressly  reserving  or  securing  to  the  United  States  a 
right  in  common  in  and  to  all  the  lands  lying  to  the  westward  of 
the  frontiers  as  aforesaid,  not  granted  to,  surveyed  for,  or 
purchased  by  individuals  at  the  commencement  of  the  present 
war,  in  such  manner  that  the  lands  be  sold  out,  or  otherwise 
disposed  of,  for  the  common  benefit  of  all  the  States. 

These  two  statements  made  by  the  Legislature  of 
Maryland  regarding  the  explanatory  Article  which  Mary- 
land wished  to  have  added  to  the  Articles  of  Confedera- 
tion evidently  cover  the  same  ground.  It  seems  clear, 
therefore,  that  the  Legislature  of  Maryland  considered 
that  an  Article  which  should  provide  that  "the  United 
States  in  Congress  assembled  "  should  "dispose  of"  the 
lands  in  the  Western  region  "for  the  common  benefit  of 


The  Dispositive  Power,  1 779-1 783    411 

all  the  States,"  would  include  a  power  in  "the  United 
States  in  Congress  assembled"  to  "parcel  out"  that 
region  "into  free,  convenient,  and  independent  Govern- 
ments, in  such  manner  and  at  such  times  as  the  wisdom 
of  that  Assembly  shall  hereafter  direct." 

The  description  of  the  power  of  "the  United  States  in 
Congress  assembled  "  over  the  Western  region  as  a  power 
to  "dispose  of  "  the  "lands  "  in  that  region, was  evidently 
preferred  by  the  Legislature  of  Maryland,  because  such  a 
power  included  the  power  both  to  dispose  of  the  soil  of 
which  the  Union  owned  the  primary  title  and  to  dispose 
of  the  jurisdiction  over  the  Western  region,  and  it  was 
regarded  as  just  and  proper  that,  as  the  region  was  un- 
settled, "the  United  States  in  Congress  assembled" — that 
is,  the  American  Union,  considered  as  a  State,  and  as  the 
Imperial  State  of  the  American  Empire — should  have 
the  benefit  arising  from  the  sale  of  its  primary  title  to  the 
soil.  It  was  doubtless  because  of  the  fact  that  the  Ameri- 
can Union,  as  a  State,  owned  the  primary  title  to  the 
soil  in  the  Western  region, — it  not  having  been  appropri- 
ated to  private  ownership, — that  the  word  "lands  "  was 
uniformly  coupled  with  the  expression  "dispose  of"  in 
the  proceedings  of  Congress.  Had  the  Western  region 
been  in  part  appropriated  to  private  ownership  and  in 
part  unappropriated,  the  Congress  would  undoubtedly 
have  used  the  expression  "the  territory  and  lands" — 
"territory"  having  the  meaning,  as  has  been  above  no- 
ticed, of  lands  appropriated  to  private  ownership  and 
under  the  governmental  control  of  the  State. 

It  will  have  been  noticed  that  Maryland,  in  its  Instruc- 
tions, demanded  that  the  Articles  of  Confederation  be 
"explained."  It  demanded  also  that  this  explanation 
should  be  by  a  "new  Article  or  Articles."  If,  however, 
the  Articles  had  only  to  be  "explained,"  a  "new  Article 
or  Articles  "  was  unnecessary,  since  the  proposition  that 
the   Articles   required    explanation    implied    that   they 


412  The  Administration  of  Dependencies 

already  contained  an  ambiguous  or  uncertain  provision 
on  the  subject,  (which  they  undoubtedly  did  by  provid- 
ing for  the  admission  of  "Colonies"  into  the  Union  in 
Article  XI.),  and  it  was  the  function  of  Congress  to  ex- 
plain the  Articles. 

Congress  acted  upon  the  basis  that  the  Articles  cov- 
ered the  subject  and  that  all  that  was  necessary  was  to 
"explain  "  them,  as  regarded  the  Western  region.  With 
this  purpose,  it  adopted,  on  September  6,  1780,  the  re- 
port of  a  committee  in  which  it  was  recommended  that 
Congress  should  "press  upon  those  States  which  can  re- 
move the  embarrassments  respecting  the  western  coun- 
try a  liberal  surrender  of  their  territorial  claims,  since 
they  cannot  be  preserved  entire  without  endangering  the 
stability  of  the  general  Confederacy";  and  Congress 
•thereupon  resolved: 

That  is  be  earnestly  recommended  to  those  States  who  have 
claims  to  the  Western  country,  to  pass  such  laws,  and  give  their 
delegates  in  Congress  such  powers,  as  may  effectually  remove 
the  only  obstacle  to  a  final  ratification  of  the  Articles  of  Con- 
federation ;  and  that  the  Legislature  of  Maryland  be  earnestly 
requested  to  authorize  the  delegates  in  Congress  to  subscribe 
the  said  Articles. 

Had  the  Congress  acceded  to  the  request  of  Maryland, 
by  adopting  a  new  Article  to  be  added  to  the  Articles  of 
Confederation,  this  would  have  required  the  Articles,  as 
amended,  to  have  been  resubmitted  to  the  Legislatures 
of  all  the  States,  and  would  have  opened  the  way  for  the 
other  States  to  demand  other  amendments.  If  the  Ar- 
ticles had  only  to  be  explained,  that  could  be  done 
equally  as  well  by  a  resolution  of  Congress  as  by  a  new 
Article.  The  Congress,  accordingly,  on  October  10, 
1780,  adopted  the  following  resolution: 

Resolved :  That  the  unappropriated  lands  that  may  be  ceded 
or  relinquished  to  the  United  States,  by  any  particular  State, 


The  Dispositive  Power,  1 779-1 783    413 

pursuant  to  the  recommendation  of  Congress  on  the  6th  day 
of  September  last,  shall  be  disposed  of  for  the  common  benefit 
of  the  United  States,  and  be  settled  and  formed  into  distinct 
republican  States,  which  shall  become  members  of  the  Federal 
Union  and  have  the  same  rights  of  sovereignty,  freedom,  and 
independence,  as  the  other  States;  that  each  State  which  shall 
be  so  formed  shall  contain  a  suitable  extent  of  territory,  not 
less  than  one  hundred  nor  more  than  one  hundred  and  fifty 
miles  square,  or  as  near  thereto  as  circumstances  will  admit. 

That  the  said  lands  shall  be  granted  or  settled  at  such  times 
and  under  such  regulations  as  shall  hereafter  be  agreed  on  by 
the  United  States  in  Congress  assembled,  or  any  nine  or  more 
of  them. 

This  resolution  explained  that  Article  XI.  of  the  Arti- 
cles of  Confederation,  which  provided  that  "no  other 
Colony  [except  Canada]  shall  be  admitted  into  the 
[Union],  unless  such  admission  be  agreed  to  by  nine 
States,"  included  a  Colony  of  the  Union,  and  defined  a 
Colony  of  the  Union  as  a  "distinct  State,"  which  was 
to  be  "disposed  of"  by  the  Congress,  according  to 
"regulations  "  made  by  the  Congress. 

The  resolution  related  simply  to  "the  unappropriated 
lands  that  may  be  ceded  or  relinquished  to  the  United 
States,  by  any  particular  State,"  and  hence  related  ex- 
clusively to  the  Western  region.  By  the  resolution,  all 
these  general  powers  of  the  Union  were  carefully  quali- 
fied as  respects  this  region.  The  right  of  disposition  was 
subject  to  the  proviso  that  the  disposition  was  to  be  "for 
the  common  benefit  of  the  United  States,"  and  with  a 
view  to  the  ultimate  admission  of  the  Colonies  into  the 
Union,  as  States,  on  equal  terms  with  the  rest.  The 
right  of  making  regulations  was  qualified  so  that  it  ex- 
tended only  to  regulations  made  relating  to  the  granting 
of  the  title  to  the  soil  or  to  the  actual  settlement  of  the 
region.     The  right  of  statehood  on  the  part  of  these 


4^4  The  Administration  of  Dependencies 

Colonies  in  the  Western  region  was  subject  to  the  proviso 
that  the  statehood  should  be  "republican  "  in  character, 
— that  is,  that  the  people  of  each  of  these  Colonies  in 
that  region  should  be  regarded  as  the  ultimate  depositary 
of  the  political  power  for  local  purposes,  and  should 
act  through  elected  representatives. 

If  the  resolution  had  been  divided  into  two,  one  ex- 
pressing the  general  principles  and  the  other  defining  the 
method  of  application  of  those  general  principles  to  the 
Western  region,  the  one  expressing  the  general  prin- 
ciples would  have  read  as  follows : 

Resolved:  That  the  American  Union  has  the  right,  and  is 
subject  to  the  obligation,  to  dispose  of  all  lands  and  popula- 
tions external  to  it  and  subject  to  its  control,  it  being  under- 
stood that  this  power  of  disposition  includes  the  power  of 
regulation,  and  that  it  implies  a  right  to  statehood  of  all  popu- 
lations naturally  adapted  to  exist  as  distinct  States. 

The  resolution  relating  to  the  application  of  these  gen- 
eral principles  to  the  Western  region  would  have  read : 

Resolved:  That  in  applying  these  principles  to  the  Western 
region,  they  shall  be  subject  to  the  following  modifications: 

First:  The  power  of  disposition  shall  be  exercised  by  the 
Union  so  as  not  to  be  for  the  benefit  of  any  particular  State, 
but  so  as  to  be  for  the  common  benefit  of  the  Union,  and  with 
a  view  to  fit  the  Colonies  for  ultimate  admission  into  the 
Union,  as  States,  on  equal  terms  with  the  other  States. 

Second:  The  power  of  disposition  shall  be  construed  as 
giving  the  Congress  the  right  to  make  only  such  regulations  as 
may  be  necessary  for  the  orderly  granting  of  the  primary 
title  of  the  Union  to  the  soil,  and  for  effecting  the  original 
settlement  of  the  region. 

Third:  The  right  of  the  Colonies  to  be  distinct  States  shall, 
for  the  protection  of  the  Union,  be  subject  to  the  proviso  that 
they  shall  all  be  republican  States. 


The  Dispositive  Power,  1 779-1 783    415 

It  was  evidently  the  common  understanding  at  the  time 
the  resolution  of  October  lo,  1780,  was  adopted,  that  it 
applied  to  dispositions  made  by  the  Union  of  its  juris- 
diction over  the  Western  region  as  well  as  to  dispositions 
made  of  its  primary  title  to  the  soil  of  unoccupied  lands. 
Thus  the  deed  of  cession  of  the  State  of  New  York  of 
March  i,  1781,  granted  the  "right,  iit\Q,  jurisdiction,  and 
claim"  of  the  State  to  the  lands  beyond  the  western 
boundary  of  the  State  as  described  in  the  deed,  "  to 
and  for  the  benefit  of  such  of  the  States  as  are  or  shall  be- 
come parties  to  the  Articles  of  Confederation.  .  .  . 
to  be  granted,  disposed  of,  and  appropriated  in  such 
manner  only  as  the  Congress  of  the  said  United  States 
shall  direct."  The  Act  of  cession  of  the  State  of  Massa- 
chusetts of  November  13,  1784,  authorized  the  Commis- 
sioners who  were  to  make  the  deed  to  impose  the 
condition  that  the  land  ceded  should  "  be  disposed  of  for 
the  common  benefit  of  the  United  States,  agreeably  to 
a  resolve  of  Congress  of  October  10,  1780";  and  the 
Commissioners,  by  their  deed,  ceded  "  all  right,  title  and 
estate  of  and  in,  as  well  the  soil  as  the  jurisdiction,  which 
the  said  Commonwealth  hath  to  the  territory"  ceded 
.  .  "  to  the  uses  in  a  resolve  of  Congress  of  the 
tenth  of  October,  1780,  mentioned." 

The  committee  of  Congress  appointed  to  consider  the 
questions  which  had  arisen  concerning  the  Western 
country  reported,  on  May  i,  1782,  in  favor  of  accepting 
the  cession  of  the  State  of  New  York,  holding  that  that 
State  had  the  best  title  to  the  soil  and  jurisdiction  of  the 
Northwest  Territory  occupied  by  the  Six  Nations  and 
their  tributaries,  because  "  all  the  lands  belonging  to  the 
Six  Nations  and  their  tributaries  have  been  in  due  form 
put  under  the  protection  of  the  Crown  of  England,  as 
appendant  to  the  late  Government  of  New  York,  so  far 
as  VQspccts  jurisdiction  only,"  and  that  "  the  Crown  of 
England  has  always  considered  and  treated  the  country 


4i6  The  Administration  of  Dependencies 

of  the  said  Six  Nations  and  their  tributaries,  inhabiting 
as  far  as  the  45th  degree  of  north  latitude,  as  appendant 
to  the  Government  of  New  York."  They  concluded  that 
"  by  Congress  accepting  this  cession,  the  jurisdiction  of 
the  whole  Western  territory,  belonging  to  the  Six  Na- 
tions and  their  tributaries,  will  be  vested  in  the  United 
States."  The  power  of  the  United  States  over  the 
region  inhabited  by  Indians  under  the  protection  of  the 
United  States  was  called  "  jurisdiction,"  showing  that 
the  committee  considered  the  region  occupied  by  the 
Indian  tribes  as  essentially  a  dependency,  though  under 
the  outward  form  of  a  protectorate. 

There  seems  to  have  never  been  any  question  in  Con- 
gress but  that  the  Congress  was  the  successor  of  the  King 
of  Great  Britain  both  as  respects  the  States  of  the  Union, 
•and  as  respects  the  regions  external  to  the  Union  and 
subject  to  its  control.  Nor  does  there  ever  seem  to  have 
been  any  question  but  that  the  power  of  the  Congress,  as 
the  Disposer  of  the  affairs  of  the  Union,  extended  only 
to  the  making  of  rules  and  regulations  for  the  common 
interest  and  benefit  of  all  the  States  of  the  Union.  The 
difficulty  arose  concerning  the  application  of  these  prin- 
ciples to  the  administration  of  the  dependencies  of  the 
Union.  The  party  which  in  the  years  1775  and  1776 
had  been^the  anti-Imperialist  party  on  account  of  their 
devotion  to  the  principle  of  States'  Rights,  were  inclined 
to  the  opinion  that  the  power  of  the  Union  over  the 
dependencies  extended  only  to  the  making  of  disposi- 
tions respecting  them  as  if  they  were  States  of  the 
Union,  and  hence  extended  only  to  the  making  of  regu- 
lations concerning  the  common  interests  of  the  whole 
political  organism  consisting  of  the  States  and  the  de- 
pendencies  of  the  Union.  If  the  power  of  the  Congress 
was  only  this,  it  could  make  no  regulations  even  for  the 
purpose  of  granting  the  title  to  the  soil  in  the  dependen- 
cies or  relating  to  the  settlement  of  unoccupied  regions 


The  Dispositive  Power,  1 779-1 783    417 

belonging  to  the  United  States,  since  it  could  cer- 
tainly do  neither  of  these  things  in  any  of  the  States. 
The  provision,  therefore,  in  the  resolution  of  October 
10,  1780,  that  the  lands  in  the  Western  region  should  be 
'granted  or  settled  at  such  times  and  under  such  regu- 
lations "  as  should  thereafter  "be  agreed  on  by  the 
United  States  in  Congress  assembled,  or  any  nine  or 
more  of  them,"  was  a  concession  forced,  by  the  necessity 
of  the  case,  from  the  anti-Imperialist  party,  and  a  yielding 
by  them,  to  that  extent,  to  the  Federal-Imperialist  view. 

When  it  came  to  be  a  question  of  the  Congress  making 
regulations  for  other  purposes  than  these,  the  anti-Im- 
perialists evidently  blocked  the  way.  The  disposition  to 
be  made  concerning  the  claims  of  the  Land  Companies 
to  portions  of  the  Western  region  was  forced  upon  the  at- 
tention of  Congress  by  petitions  of  these  Companies,  in 
1779  and  1780,  and  the  Congress,  by  its  committee,  ad- 
judicated these  claims  in  1783,  and  reported  in  favor  of 
recognizing  them  in  part,  but  never  made  any  regulation 
"assigning  territories"  to  them.  So  in  the  case  of  Ver- 
mont, the  Congress  in  1784,  on  the  application  of  Ver- 
mont, adjudicated,  by  a  committee,  the  question  both 
of  its  right  to  a  distinct  existence  and  of  its  boundaries; 
but,  though  a  decision  was  made  that  it  was  entitled  to  a 
distinct  existence  and  though  the  boundaries  were  ascer- 
tained, no  regulation  was  made  in  execution  of  the  adju- 
dication. So  far  as  the  Indian  tribes  were  concerned,  the 
power  of  disposition  was  exercised,  under  the  provisions 
of  the  Articles  of  Confederation,  not  through  regulations 
made  by  Congress  in  the  form  of  legislation,  but  by  regu- 
lations made  in  the  form  of  treaties  with  the  tribes. 

By  the  resolution  of  October  lo,  1780,  therefore,  the 
power  of  the  Union,  as  the  Imperial  State  of  the  Ameri- 
can Empire,  over  its  dependencies,  was  declared  to  be  the 
power  of  disposition — the  dispositive  power.  The  anti- 
Imperialist  party,  however,  evidently  fearing  that  such 


4^8  The  Administration  of  Dependencies 

power  exercised  by  a  popular  representative  body  like  the 
Congress  might,  in  practice,  come  to  be  virtually  a  power 
of  legislation  with  a  mere  pretence  of  previous  adjudica- 
tion, insisted  that  the  power  should  be  construed  as 
strictly  as  possible  against  the  Congress  and  against  the 
Union,  in  so  far  as  it  included  power  to  make  rules  and 
regulations  in  execution  of  adjudications.  Though,  in 
joining  in  the  resolution  of  October  lo,  1780,  the  anti- 
Imperialists  admitted  that  the  power  of  disposition,  from 
its  very  definition,  implied  the  power  to  make  rules  and 
regulations,  they  had  at  the  same  time  succeeded  in  hav- 
ing the  power  of  regulation  separated  from  the  power  of 
disposition,  so  as  to  leave  it  doubtful  whether  the  regu- 
lations which  were  to  be  made  in  execution  of  the  adju- 
dications of  Congress  were  to  be  made  by  the  Congress 
or  made  by  the  dependencies  themselves.  Since  to  allow 
the  dependencies  to  make  such  regulations  was  practically 
to  have  no  regulations  made  at  all,  the  effect  of  the  reso- 
lution of  October  10,  1780,  was,  in  fact,  to  give  the  Con- 
gress power  over  the  Western  region  only  for  the  purpose 
of  granting  the  primary  title  to  the  soil  and  for  the 
purpose  of  colonizing  the  region.  Thenceforward,  the 
question  was  whether  or  not  the  power  of  Congress  to 
regulate  the  Western  region  was  a  limited  one,  so  that, 
although  it  was  its  duty  to  adjudicate  all  matters  arising 
between  the  Union  and  the  dependencies,  it  had  power 
to  make  rules  and  regulations  only  in  a  restricted  class  of 
cases, — in  a  word,  it  became  a  question  of  the  extent  of 
the  regulative  power  of  the  Union  over  its  dependencies. 


CHAPTER   XXII 

THE   REGULATIVE   POWER,   1783-I787 

THE  committee  of  Congress  appointed  to  consider 
and  report  on  the  general  policy  to  be  pursued 
toward  the  Western  region,  in  their  report  made 
October  14,  1783,  proposed  a  resolution  for  the  appoint- 
ment of  a  committee  to  consider  the  expediency  of 
"  laying  out  a  suitable  District  within  the  said  territory 
and  erecting  it  into  a  distinct  Government,"  and  recom- 
mended that  this  committee  be  instructed,  in  case  they 
were  in  favor  of  laying  out  such  a  District, 

to  devise  a  plan  for  the  government  of  the  inhabitants  and  the 
administration  of  justice,  until  their  number  and  circumstances 
shall  entitle  them  to  a  place  among  the  States  of  the  Union, 
when  they  shall  be  at  liberty  to  form  a  Constitution  for  them- 
selves, not  inconsistent  with  the  republican  principles  which 
are  the  basis  of  the  Constitutions  of  the  respective  States  of 
the  Union. 

A  plan  "for  the  government  of  the  inhabitants  and  the 
administration  of  justice  "  in  the  Western  dependencies 
until  they  were  admitted  to  the  Union  would  have  been 
a  plan  based  on  the  mere  will  of  Congress.  The  Union 
would  have  "  governed  "  these  dependencies  during  the 
whole  period  that  they  were  without  representation  in 
Congress. 

Elbridge  Gerry,  of  Massachusetts,  proposed  an  amend- 
ment to  this  resolution,  which  was  adopted,  and  which 
declared  it  to  be  the  intention  of   Congress  "  to  erect  a 

419 


420  The  Administration  of  Dependencies 

District  of  the  Western  territory  into  a  distinct  Govern- 
ment, as  soon  as  circumstances  shall  permit,  and  "in 
the  interim  to  appoint  a  committee  to  report  a  plan, 
consistent  with  the  principles  of  the  Confederatioft  for  con- 
necting with  the  Unio7i,  by  a  temporary  form  of  govern- 
fnent,  the  purchasers  and  inhabitants  of  the  said  District.'' 

A  plan  "for  connecting  [the  District]  with  the  Union, 
by  a  temporary  form  of  government,"  was  a  plan  based 
on  the  theory  that  a  compact  existed  between  the  Union 
and  the  District.  It  was  not  a  plan  to  allow  the  popula- 
tions in  the  Western  region  to  form  their  own  Govern- 
ment and  then  enter  into  a  treaty  with  the  Union 
concerning  the  powers  which  it  should  exercise  over 
them.  The  temporary  form  of  government  was  it- 
self to  be  of  such  a  kind  as  to  "connect"  the  de- 
pendencies with  the  Union,  but  "connection,"  by  its 
very  definition,  necessarily  implies  a  contractual,  that  is, 
a  federal  relationship. 

The  "  circumstances  "  referred  to  in  Gerry's  resolution, 
which  were  to  permit  the  devising  of  a  plan  of  govern- 
ment, were  a  satisfactory  cession  by  Virginia  and  the 
extinguishment  of  the  Indian  title.  The  first  of  these 
circumstances  occurred  on  March  i,  1784,  when  the  ces- 
sion  of  Virginia  was  accepted  by  Congress.  A  com- 
mittee of  Congress  was  immediately  appointed  to  devise 
a  plan  of  government  for  the  Western  region,  of  which 
Thomas  Jefferson  was  the  chairman,  and  David  Howell, 
of  Rhode  Island  and  Samuel  Chase,  of  Maryland  mem- 
bers. On  March  11,  1784,  this  committee  reported  a 
resolution  which,  in  an  amended  form,  was  adopted  April 
23,  1784,  which  became  known  as  the  Resolution  of  1784 
for  the  Government  of  the  Northwest  Territory.  The 
Resolution,  after  providing  that  the  region  to  be  ceded 
by  the  States  to  the  Union  should  be  "divided  into 
•distinct  States,"  which  were  described  by  boundaries, 
made  the  following  provisions  for  the  "temporary  and 


The  Regulative  Power,  1783- 1787    421 

permanent    Government"    to    be    established    in    the 
ceded  region : 


The  settlers  within  the  territory  so  to  be  purchased  [from 
the  Indians]  and  offered  for  sale  shall,  either  on  their  own 
petition  or  on  the  order  of  Congress,  receive  authority  from 
them,  with  appointments  of  time  and  place,  for  their  free  males 
of  full  age  to  meet  together  for  the  purpose  of  establishing  a 
temporary  Government,  to  adopt  the  Constitution  and  laws  of 
any  of  these  States,  so  that  such  laws,  nevertheless,  shall  be 
subject  to  alteration  by  their  ordinary  Legislature,  and  to  erect, 
subject  to  like  alteration,  counties  or  townships  for  the  elec- 
tion of  members  for  their  Legislature. 

Such  temporary  Government  shall  only  continue  in  force  in 
any  State  until  it  shall  have  acquired  twenty  thousand  free 
inhabitants,  when,  giving  due  proof  thereof  to  Congress,  they 
shall  receive  from  them  authority,  with  appointments  of  time 
and  place,  to  call  a  convention  of  representatives  to  establish 
a  permanent  Constitution  and  Government  for  themselves  ; 

Provided,  That  both  the  temporary  and  permanent  Govern- 
ments be  established  on  these  principles  as  their  basis: 

First:  That  they  shall  forever  remain  a  part  of  this  Con- 
federacy of  the  United  States  of  America. 

Second:  That  they  shall  be  subject  to  the  Articles  of  Con- 
federation in  all  those  cases  in  which  the  original  States  shall 
be  so  subject,  and  to  all  the  acts  and  ordinances  of  the  United 
States  in  Congress  assembled,  conformable  thereto. 

Third:  That  they  in  no  case  shall  interfere  with  the  primary 
disposal  of  the  soil  by  the  United  States  in  Congress  assembled, 
nor  with  the  ordinances  and  regulations  which  Congress  may 
find  necessary  for  securing  the  title  in  such  soil  to  bona  fide 
purchasers. 

Fourth:  That  they  shall  be  subject  to  pay  a  part  of  the 
Federal  debts  contracted  or  to  be  contracted,  to  be  appor- 
tioned on  them  by  Congress,  according  to  the  same  common 
rule  and  measure  by  which  apportionment  thereof  shall  be 
made  on  the  other  States. 


42  2  The  Administration  of  Dependencies 

Fifth :  That  no  tax  shall  be  imposed  on  lands  the  property 
of  the  United  States, 

Sixth:  That  the  respective  Governments  shall  be  republican. 

Seventh:  That  the  lands  of  non-resident  proprietors  shall 
in  no  case  be  taxed  higher  than  those  of  residents  within  any 
new  States,  before  the  admission  thereof  to  a  vote  by  its  dele- 
gates in  Congress. 

The  Plan  provided  that  each  of  the  new  States  in  the 
ceded  region,  under  both  the  temporary  and  permanent 
Government,  was  to  be  connected  with  the  Union 
through  the  medium  of  a  delegate  in  Congress,  who 
was  to  have  the  right  to  debate,  but  not  to  vote.  Such 
a  delegate  corresponded  almost  exactly  to  the  Colonial 
Agent  which  each  of  the  American  Colonies,  prior  to  the 
Revolution,  had  sent  to  the  British  Court,  to  represent 
the  Colony  diplomatically  before  the  King  in  Council. 
The  Congress  thus  recognized  itself  as  the  Sovereign  of 
the  American  Union,  at  whose  Court  the  dependent 
States  in  the  Western  region  were  entitled  to  have  diplo- 
matic representatives. 

The  following  clause  was  inserted  at  the  end  of  the 
Resolution : 

The  preceding  Articles  shall  be  formed  into  a  Charter  of 
Compact,  shall  be  duly  executed  by  the  President  of  the 
United  States  in  Congress  assembled,  under  his  hand  and  the 
seal  of  the  United  States,  shall  be  promulgated,  and  shall 
stand  as  Fundamental  Constitutions  between  the  thirteen 
original  States,  and  those  now  newly  described,  unalterable 
but  by  the  general  consent  of  the  United  States  in  Congress 
assembled,  and  of  the  particular  State  within  which  such 
alteration  is  proposed  to  be  made. 

Had  a  plan  of  government  for  the  Western  region  been 
adopted,  according  to  which  all  the  provisions  were  made 
a  "Charter  of  Compact  "  between  the  Confederation  and 


The  Regulative  Power,  1 783-1 787    423 

each  of  the  dependencies  in  that  region,  each  of  them 
would  have  been  recognized  as  a  State,  equal  with  and 
independent  of  the  Confederation,  and  as  having  granted 
to  the  Confederation  the  right,  license,  or  privilege  of 
performing  services  for  the  benefit  of  the  dependency. 
The  adoption  of  such  a  plan  of  government  would  have 
made  it  forever  impossible  for  the  Confederation  to  exer- 
cise other  powers  than  those  granted  unless  the  depend- 
encies saw  fit  to  make  an  additional  grant  of  powers. 
This  would  have  been  "States'  rights"  carried  to  the 
extreme. 

The  Resolution  recognized  that  the  ''Districts"  or 
"States"  in  the  Western  region,  until  their  admission 
into  the  Confederation  on  equal  terms,  were  "  Colonies" 
within  the  meaning  of  Article  XI.  of  the  Articles  of 
Confederation.     It  provided  that : 

Whenever  any  of  the  said  States  shall  have,  of  free  inhabi- 
tants, as  many  as  shall  then  be  in  any  one  the  least  numerous 
of  the  thirteen  original  States,  such  State  shall  be  admitted  by 
its  delegates  into  the  Congress  of  the  United  States,  on  an 
equal  footing  with  the  said  original  States;  after  which  the 
assent  of  two-thirds  of  the  United  States  in  Congress  assembled 
shall  be  requisite  in  all  those  cases,  wherein  by  the  Articles  of 
Confederation  the  assent  of  nine  States  is  now  required;  pro- 
vided the  consent  of  nine  States  to  such  admission  may  be 
obtained  according  to  the  eleventh  of  the  Articles  of  Confedera- 
tion. 

The  eleventh  of  the  Articles  of  Confederation  was  the 
one  which  permitted  the  entrance  of  Canada  into  the 
Union  upon  joining  in  the  measures  of  the  Confederacy, 
and  which  provided  that  "  7io  other  Colony  shall  be  ad- 
mitted into  the  same  unless  such  admission  be  agreed 
to  by  nine  States." 

In  the  Resolution  as  originally  reported  from  the  com- 
mittee, the  second  condition  was  worded  as  follows: 


424  The  Administration  of  Dependencies 

That  they  shall  be  subject^  in  their  persons,  property,  and 
territory,  to  the  government  of  the  United  States  in  Congress 
assembled,  and  to  the  Articles  of  Confederation  in  all  those 
cases  in  which  the  original  States  shall  be  so  subject,  and  to 
all  the  acts  and  ordinances  of  the  United  States  in  Congress 
assembled,  conformable  thereto. 

On  April  20,  1784,  when  the  Resolution  was  brought 
before  Congress  for  discussion,  after  having  been  pre- 
viously recommitted,  the  words  "to  the  government  of 
the  United  States  in  Congress  assembled"  were,  on 
motion,  stricken  out,  only  the  State  of  Maryland  voting 
in  favor  of  their  retention. 

Had  these  words  been  allowed  to  remain  in  the  Reso- 
lution, the  "Districts  "  or  "States  "  in  the  Western  re- 
gion would  have  been  subject,  by  express  contract, 
to  the  mere  will  of  "  the  United  States  in  Con- 
gress assembled,"  except  in  so  far  as  the  latter  had 
agreed  in  the  "Charter  of  Compact"  not  to  exercise 
its  will.  They  would  have  bargained  for  a  limited  sub- 
jection, but  also  for  an  unconditional  subjection  out- 
side the  limits,  and  the  case  would  have  fallen  within 
the  principle  of  the  third  class  of  cases  of  federal  sub- 
jection of  States  mentioned  in  the  Observations  on  the 
American  Revolution — where  a  State  had  "actually  bar- 
gained for  unconditional  submission  " — and,  according  to 
the  theory  of  the  United  States  as  therein  declared, 
"that  bargain  would  have  been  from  its  very  nature  void 
as  to  [the  people  of  the  new  States] ;  or  if  not  to  them, 
at  least  to  their  offspring;  and,  of  consequence -from  the 
principles  of  all  free  societies,  the  contract  [for  a  condi- 
tional subjection]  would  result." 

When  the  provision  that  made  the  temporary  and  per- 
manent Governments  "  subject  to  the  government  of  the 
United  States  in  Congress  assembled,"  was  stricken  out, 
the  effect  was  to  leave  the  dependencies  in  the  Western 


The  Regulative  Power,  1 783-1 787    425 

region,  after  the  formation  of  temporary  Governments, 
subject  only  "  to  the  Articles  of  Confederation  in  all 
those  cases  in  which  the  original  States  shall  be  so  sub- 
ject," and  to  take  away  all  possibility  of  any  control  of 
them  by  Congress  from  the  moment  the  temporary  Gov- 
ernments should  be  formed.  What  power  the  Congress 
should  have  until  the  temporary  Governments  were 
formed,  was  left  indefinite. 

A  resolution  covering  the  power  of  Congress  until  such 
time  as  the  settlers  should  form  a  temporary  Government 
was  soon  introduced,  which  assumed  that  Congress  ought 
to  have  the  same  powers  as  those  claimed  by  the  British 
Parliament  by  the  Declaratory  Act  of  1766.  This  reso- 
lution read : 

That  till  such  time  as  the  settlers  aforesaid  shall  have 
adopted  the  Constitution  and  laws  of  some  one  of  the  original 
States  as  aforesaid,  for  their  temporary  Government,  they  shall 
be  ruled  by  magistrates  to  be  appointed  by  the  United  States 
in  Congress  assembled,  and  under  such  laws  and  regulations 
as  the  United  States  in  Congress  assembled  shall  direct. 

This  resolution  failed  to  receive  the  vote  of  seven 
States,  and  three  days  later  Congress  adopted  a  resolution, 
offered  by  Gerry,  the  author  of  the  original  resolution  of 
October  14,  1783,  committing  Congress  to  the  Federal- 
Imperialist  theory  until  a  temporary  Government  should 
be  formed,  and  declaring  its  power,  until  that  time,  to  be 
conditional,  fiduciary,  and  conservative, — that  is,  a  power 
of  disposition.     This  resolution  read : 

That  measures  not  inconsistent  with  the  principles  of  the  Con- 
federation, and  necessary  for  the  preservation  of  peace  and  good 
order  among  the  settlers  in  any  of  the  new  States,  until  they 
shall  assume  a  temporary  Government  as  aforesaid^  may  from 
time  to  time  be  taken  by  the  United  States  in  Congress 
assembled. 


426  The  Administration  of  Dependencies 

This  provision  was  inserted  before  the  last  clause  of 
the  Resolution  and  hence  was  made  a  part  of  the  "Char- 
ter of  Compact." 

As  the  Resolution  stood,  even  after  Gerry's  amendment, 
the  moment  a  community  in  the  Western  region  adopted 
even  a  "  temporary  Government,"  it  was  considered  as  a 
distinct  political  personality,  or  State,  external  to  the 
Confederation,  over  which  the  Confederation  had  no 
power  except  as  such  power  had  been  granted  to  it  by 
the  express  treaty  made  between  it  and  the  new  State, 
formulated  in  and  evidenced  by  the  Resolution. 

The  Resolution  of  1784,  therefore,  was,  as  a  whole,  in 
accordance  with  the  anti-Imperialist  theory  that  all  rela- 
tions between  States  are  the  result  of  an  express  contract. 
Had  it  ever  gone  into  effect,  it  would  have  constituted 
a  written  Imperial  Constitution  between  the  American 
Union,  as  the  Imperial  State,  and  the  dependencies  in 
the  Western  region,  from  the  moment  that  they  assumed 
even  temporary  Governments,  and  would  have  given 
the  Union  the  same  limited  powers  over  them  as  it  exer- 
cised over  the  States  of  the  Union,  which  powers,  how- 
ever, it  could  have  exercised  without  any  condition 
whatever  as  to  the  manner  of  its  exercise.  For  the  dis- 
positive power,  it  would  have  substituted  a  power  of 
managing  the  foreign  relations  of  the  dependencies,  and 
an  exceedingly  limited  power  to  legislate  for  the  com- 
mon interests,  as  soon  as  even  temporary  Governments 
should  be  formed  by  these  dependencies. 

The  Resolution  of  1784  was  never  put  in  force.  Pro- 
viding, as  it  did,  that  the  communities  in  the  Western 
region  should  ultimately  be  admitted  as  States  of  the 
Confederation  on  equal  terms  with  the  other  States,  in 
which  respect  it  conformed  to  the  resolution  of  October 
10,  1780,  and  the  Virginia  and  Massachusetts  deeds  of 
cession,  a  difficulty  arose  from  the  fact  that  the  resolution 
and  deeds  required  that  each  State  formed  in  the  West- 


The  Regulative  Power,  1 783-1 787    427 

ern  region  should  be  not  less  than  one  hundred  nor  more 
than  one  hundred  and  fifty  miles  square. 

If  the  Northwest  Territory  alone  had  been  divided  into 
States  one  hundred  and  fifty  miles  square,  eleven  States 
would  have  been  formed  in  it ;  if  of  one  hundred  miles 
square,  twenty-five.  The  resolution  of  October  10,  1 780, 
however,  by  which  these  maximum  and  minimum  di- 
mensions were  fixed,  related  to  all  the  Western  region 
which  should  be  ceded  by  the  States  to  the  United 
States,  and  promised  to  each  State  formed  in  the  re- 
gion admission  into  the  Confederation  on  equal  terms. 
In  that  which  was  actually  ceded,  there  could  have  been 
formed  twenty  States  one  hundred  and  fifty  miles  square, 
or  forty-five  one  hundred  miles  square. 

As  the  power  to  admit  new  "  States  "  was  based  on 
Article  XI.  of  the  Articles  of  Confederation,  a  new 
"  State  "  could  be  admitted  by  vote  of  any  nine  States  of 
the  Confederation.  As  soon  as  more  than  three  new  States 
were  added,  the  original  States  would  have  been  at  the 
mercy  of  any  coalition  between  these  three  and  a  min- 
ority of  themselves,  and  as  soon  as  more  than  five  new 
States  were  admitted,  even  nine  of  the  old  States  voting 
together  could  not  have  prevented  the  admission  of  as 
many  new  States  as  the  remainder  might  have  seen  fit. 
The  original  States  were  slow  to  adopt  a  plan  which 
seemed  certain  to  throw  the  power  into  the  hands  of  the 
Western  States.  In  the  Resolution  as  amended  on  re- 
committal and  as  adopted  by  Congress,  the  difficulty  was 
attempted  to  be  cured  by  requiring  each  new  State  on 
its  admission  to  agree  that  no  State  should  be  subse- 
quently admitted  except  by  a  vote  of  two  thirds  of  the 
States  then  members  of  the  Confederation ;  but  this  was 
plainly  an  attempt  to  amend  Article  XI.  in  an  indirect 
way,  and  its  validity  was  doubtful. 

It  was  doubtless  largely  owing  to  this  difficulty  that 
the  subject  of  the  disposition  to  be  made  of  the  Western 


428  The  Administration  of  Dependencies 

region  was  before  Congress  for  more  than  three  years 
before  final  action  was  taken,  and  that  there  arose,  as 
there  evidently  did,  between  the  United  States  and  the 
inhabitants  of  the  Northwest  Territory  a  decided  hostility 
in  the  years  1786  and  1787.  There  was  a  practical  dead- 
lock. Congress  could  not  give  the  "Districts"  or 
"States"  a  regime  guaranteeing  them  ultimate  admis- 
sion as  States  of  the  Union,  without  exposing  the 
original  States  to  the  power  of  the  Western  States,  in 
number  at  least  eleven  and  perhaps  forty-five ;  and  yet  to 
have  given  them  a  regime  which  did  not  so  guarantee, 
would  not  only  have  alienated  them  from  the  Union,  but 
would  have  driven  them  to  intrigue  with  Great  Britain 
or  Spain  for  the  purpose  of  establishing  an  independent 
Confederation. 

Matters  were  rapidly  drifting  into  a  dangerous  situa- 
tion. The  British  troops  had  refused  to  evacuate  the 
posts  in  the  Northwest  Territory  and  were  ready  to  re- 
occupy  the  region  in  case  the  United  States  should  fail, 
after  a  reasonable  time,  to  effectively  occupy  it.  Spain 
claimed  the  whole  region  between  the  Mississippi  and  the 
Alleghenies  as  far  north  as  the  Ohio.  Madison,  in  the 
Madison  Papers,  gives  a  detailed  account  of  a  number  of 
interviews  which  he  had,  in  the  spring  of  1787,  as  a 
member  of  the  Committee  on  Foreign  Relations,  with 
Guardoqui,  the  Spanish  Minister,  who  was  seeking  recog- 
nition of  the  Spanish  claim  to  close  the  Mississippi,  in 
one  of  which  the  Minister  distinctly  claimed  for  Spain 
the  whole  region  above  described.  By  vote  of  seven 
States,  Congress  authorized  a  treaty  to  be  made,  grant- 
ing to  Spain  the  right  to  close  the  navigation  of  the 
Mississippi  for  twenty-five  years,  but  the  validity  of  a 
majority  vote  on  such  an  important  subject  was  denied 
by  the  other  States,  and  the  treaty  was  not  consummated. 

Washington,  writing  to  Governor  Benjamin  Harrison, 
of  Virginia,  less  than  six  months  after  the  Resolution  of 


The  Regulative  Power,  1 783-1 787    429 

1784  was  adopted,  on  his  return  from  a  journey  through 
the  Western  region,  said  that  the  communities  there 
stood,  "as  it  were,  upon  a  pivot.  The  touch  of  a  feather 
would  turn  them  any  way." 

The  Ordinance  of  1787  for  the  Government  of  the 
Northwest  Territory  evidently  had  its  origin  in  the  con- 
viction of  some  of  the  delegates  in  the  Congress,  that  it 
was  absolutely  necessary  to  the  safety  of  the  Confedera- 
tion that  the  Congress  should  recognize  itself  as  having 
the  utmost  power  possible  over  the  Western  region,  con- 
sistently with  the  position  which  the  American  Colonies 
had  taken  against  Great  Britain  during  the  Revolution. 
It  was  realized  that  if  the  Confederation  should  actually 
commit  itself  to  the  theory  of  the  Resolution  of  1784, 
that  it  had  no  power  over  the  communities  in  the  West- 
ern region  except  as  the  result  of  an  express  contract, 
this  practically  would  give  the  Confederation  only  so 
much  power  over  these  communities  as  they  chose  to  allow 
it  to  have,  and  would  allow  them  to  rescind  the  contract 
and  secede  from  the  Empire  whenever  they  were  dissatis- 
fied. Secession  of  the  Western  States  from  the  Ameri- 
can Empire,  it  was  realized,  would  mean  possibly  the 
destruction  of  the  Confederation  itself  by  a  new  Confed- 
eration of  Western  States,  aided  by  foreign  influence, 
and  certainly  a  serious  loss  of  prestige  to  the  existing 
Confederation.  The  effect  of  the  representations  of  the 
delegates  who  held  this  view  was  to  gradually  bring  the 
whole  Congress  to  this  way  of  thinking,  and  Congress 
set  itself  to  the  task  of  establishing  a  regime  for  the 
Western  region  which  should  go  as  far  as  possible  in  the 
direction  of  keeping  the  power  in  the  hands  of  the  Con- 
federation, and  yet  not  be  inconsistent  with  the  position 
taken  by  the  American  Colonies  in  the  contest  with 
Great  Britain.  Such  action  had  to  be  taken  in  secret. 
The  popular  mind  was  so  full  of  the  "rights  of  man" 
theories  that  demagogues  had  become  popular  idols  and 


430  The  Administration  of  Dependencies 

easily  persuaded  the  people  that  all  government  except 
that  by  demagogues  was  oppression.  "Shays'  Re- 
bellion," so-called,  which  occurred  in  Massachusetts  in 
1786,  was  but  an  evidence  of  the  general  disrespect  for 
all  government,  and  particularly  of  government  by  the 
Congress.  Evidently  it  was  due  to  the  political  situation 
that  Congress  left  no  record  on  its  Journals  except  of 
appointment  of  committees  and  of  its  completed  action. 
The  Journals  of  Congress  show  that  on  March  24,  1786, 
a  report  was  made  by  a  Grand  Committee  of  the  House, 
to  whom  had  been  referred  a  motion  of  James  Monroe, 
then  one  of  the  delegates  from  Virginia,  on  the  subject 
of  the  Western  territory.  They  also  show  that,  on  May 
10,  1786,  a  report  was  made  by  a  Committee  of  which 
Monroe  was  chairman  and  Johnson  of  Connecticut,  King 
of  Massachusetts,  and  Kean  and  Pinckney  of  South 
Carolina  were  members,  to  whom  a  motion  made  by 
Dane  of  Massachusetts,  for  considering  and  reporting  the 
form  of  a  temporary  Government  for  the  Western  territory, 
had  been  referred.  Though  the  originals  of  these  mo- 
tions and  reports  are  not  in  existence,  so  far  as  is  known, 
Monroe  has  left  a  statement  of  their  main  characteristics. 
Writing  to  his  friend  and  preceptor,  Jefferson,  who  was 
then  in  Paris,  on  the  very  next  day  after  this  report  was 
made  (May  11,  1786),  he  said: 

A  proposition,  or  rather  a  report,  is  before  Congress,  recom- 
mending it  to  Virginia  and  Massachusetts  to  revise  their  acts 
so  as  to  leave  it  to  the  United  States  to  make  what  division  of 
the  [Northwest  Territory]  future  circumstances  may  make 
necessary,  subject  to  this  proviso,  "  that  the  said  territory  be 
divided  into  not  less  than  two  nor  more  than  five  States." 
The  plan  of  a  temporary  Government  to  be  instituted  by  Con- 
gress and  preserved  over  such  District  until  they  shall  be 
admitted  into  Congress  is  also  reported.  The  outlines  are  as 
follows:  Congress  are  to  appoint,  as  soon  as  any  of  the  lands 


The  Regulative  Power,  1783- 1787    431 

shall  be  sold,  a  Governor,  Council,  Judges,  Secretary  to  the 
Council,  and  some  other  officers;  the  Governor  and  Council 
to  have  certain  powers  until  they  have  a  certain  number  of 
inhabitants,  at  which  time  they  are  to  elect  representatives  to 
form  a  General  Assembly,  to  consist  of  the  Governor  and 
Council  and  said  House  of  Representatives.  //  is,  in  effect, 
to  be  a  Colonial  Government  similar  to  that  which  prevailed  in 
these  States  previous  to  the  Revolution,  with  this  remarkable  and 
important  difference  that  when  such  District  shall  contain  the 
number  of  the  least  numerous  of  the  thirteen  original  States 
for  the  time  being,  they  shall  be  admitted  into  the  Confederacy. 
The  most  important  principles  of  the  Act  at  Annapolis  are, 
you  observe,  preserved  in  this  report.  It  is  generally  ap- 
proved of,  but  has  not  yet  been  taken  up. 

"  The  Act  at  Annapolis  "  was  the  Resolution  of  1784, 
— Congress  being  in  session  at  Annapolis  at  the  time 
that  Resolution  was  adopted. 

It  was  entirely  consistent  with  the  position  taken  by 
the  American  Colonies  against  Great  Britain  for  the  Con- 
federation to  establish  "a  Colonial  Government  similar 
to  that  which  prevailed  in  these  States  previous  to  the 
Revolution."  The  ultimatum  of  the  American  Colonies 
had  been  a  demand  for  the  restoration  of  the  British  Em- 
pire in  America  as  it  existed  in  1763, — that  is,  "previous 
to  the  Revolution." 

To  this  letter  Jefferson  replied  from  Paris  on  July 
9,  1786,  saying  that  the  question  which  Congress  ought 
to  consider  was,  "  How  may  the  territories  of  the 
Union  be  disposed  of,  so  as  to  produce  the  greatest 
degree  of  happiness  to  their  inhabitants  ?" — using  the 
word  "  territories  "  as  applying  both  to  the  States  of  the 
Union  and  the  dependencies  of  the  Union.  He  opposed 
this  question  to  that  which  he  said  Congress  was  really 
considering,  namely,  "  How  may  the  ultramontane  ter- 
ritory be  disposed  of,  so  as  to  produce  the  greatest  and  most 
immediate   benefit   to   the    ifihabitauts    of   the   maritime 


432  The  Administration  of  Dependencies 

States  f  "  saying  that,  if  that  were  the  real  question,  "  t/ie 
plan  would  be  more  plausible,  of  laying  it  off  into  tivo  or 
three  States  only. 

His  argument  was  that  as  the  real  question  was  how  the 
territory  should  be  disposed  of  so  as  to  produce  the  great- 
est degree  of  happiness  to  its  inhabitants,  a  division  of  it 
into  States  of  moderate  size  was  necessary.     He  said : 

There  will  surely  be  a  division  of  that  country  into  States  of 
a  small,  or  at  most,  of  a  moderate  size.  If  we  lay  them  off  into 
such,  they  will  acquiesce;  and  we  shall  have  the  advantage 
of  arranging  them  so  as  to  produce  the  best  combinations  of 
interest.  .  .  .  Upon  this  plan  we  treat  them  as  fellow- 
citizens  ;  they  will  have  a  just  share  in  their  own  government ; 
they  will  love  us,  and  pride  themselves  on  a  union  with  us. 
Upon  the  other,  we  treat  them  as  subjects;  we  govern  them, 
and  not  they  themselves;  and  they  will  abhor  us  as  masters, 
and  break  off  from  us  in  defiance. 

Jefferson  had,  therefore,  arrived  at  the  conclusion 
that  the  power  of  the  Union  was  a  power  of  "  disposi- 
tion "  ;  that  it  was  proper  that  it  should  "  arrange  "  the 
dependencies  "  so  as  to  produce  the  best  combinations 
of  interest";  that  statehood,  as  applied  to  depend- 
encies, meant  that  the  inhabitants  should  have  "  a  just 
share  in  their  own  government." 

It  is  noticeable  that  he  made  no  comment  on  Mon- 
roe's statement  that  the  Government  proposed  for  the 
Northwest  Territory  was  to  be  "  in  effect,  a  Colonial 
Government,  similar  to  that  which  prevailed  in  these 
States  previous  to  the  Revolution  "  until  the  Colony 
should  be  admitted  as  a  State  into  the  Union  on  equal 
terms.  This  is  not  surprising  when  we  remember  that 
in  1775  he  wrote  to  John  Randolph;  "  I  am  sincerely 
one  of  those  who  wish  for  a  reunion  with  their  parent 
country,   and  would  rather  be  iti  dependence   on    Great 


The  Regulative  Power,  1 783-1 787    433 

Britain,  properly  limited,  than  on  any  other  nation  on 
earth,  or  than  on  no  nation." 

The  report  of  Monroe's  Committee  was  recommitted, 
after  being  amended,  on  July  13,  1786.  He  failed 
to  be  re-elected  upon  the  expiration  of  his  term 
in  the  summer  of  1786,  and  on  September  19,  1786, 
the  Committee  was  reconstituted,  Johnson  becoming 
the  chairman  and  the  other  members  being  Pinckney, 
Smith  of  New  York,  Dane,  and  Henry  of  Mary- 
land. They  were  directed  to  prepare  a  "plan  of  tem- 
porary government  for  such  Districts  or  new  States  as 
shall  be  laid  out  by  the  United  States  upon  the  prin- 
ciples of  the  Acts  of  Cession  from  individual  States  and 
admitted  into  the  Confederacy."  On  April  26,  1787, 
this  Committee  reported  "An  Ordinance  for  the  Govern- 
ment of  the  Western  Territory,"  which  was  read  a  second 
time  and  amended  on  May  9,  and  assigned  for  third 
reading  the  next  day.  The  third  reading  was,  however, 
postponed  by  vote  of  the  House  on  May  10.  These 
proceedings  of  the  Congress  (which  was  then  sitting  in 
New  York)  were  the  last  in  which  those  members  partici- 
pated who  had  been  elected  as  delegates  to  the  Conven- 
tion to  frame  the  Constitution  of  the  United  States 
which  met  in  Philadelphia  on  May  14.  Among  those 
who  thus  came  to  the  Constitutional  Convention  fresh 
from  the  debates  in  Congress  concerning  the  proper  dis- 
position of  the  Western  region  was  Madison. 

The  Ordinance  as  reported  is  not  given  in  the  Journals 
of  Congress.  It  was,  however,  kept  among  the  files  and 
was  brought  to  light  by  Peter  Force  in  1848.  From  an 
inspection  it  is  evident  that  no  material  change  had  been 
made  in  the  Ordinance  as  reported  by  Monroe's  Com- 
mittee. It  was  still  unmistakably  an  Ordinance  estab- 
lishing "a  Colonial  Government  similar  to  that  which 
prevailed  in  these  States  previous  to  the  Revolution." 

By  the  terms  of  the  Ordinance  as  reported,  the  whole 

aS 


434  The  Administration  of  Dependencies 

of  the  Northwest  Territory  was  created  into  a  District 
or  Province,  under  a  Governor  and  Council  appointed  by 
the  Congress.  The  Governor  was  at  the  same  time  the 
Commander-in-Chief  of  the  militia  of  the  region,  with 
power  to  appoint  and  commission  all  officers  below  the 
rank  of  general  officers,  these  latter  being  appointed  and 
commissioned  by  Congress.  He  was  to  hold  office  for 
three  years,  unless  his  commission  was  sooner  revoked 
by  Congress. 

Until  the  organization  of  the  General  Assembly,  the 
Governor  had  power  to  lay  out  counties  and  townships 
and  to  make  proper  divisions  of  the  District  for  the 
convenient  execution  of  civil  and  criminal  process.  He 
had  the  entire  power  to  appoint  all  *'  such  magistrates 
and  other  civil  officers,  in  each  county  or  township,  as  he 
shall  find  necessary  for  the  preservation  of  peace  and 
good  order  in  the  same."  In  the  performance  of  all 
these  duties  of  disposition  of  the  jurisdiction  of  the 
region,  he  acted  absolutely  according  to  his  own  will  and 
pleasure,  subject  only  to  removal  by  Congress. 

In  the  matter  of  legislation,  his  powers  were  limited, 
and  he  had  no  power  of  adjudication  between  indi- 
viduals, except  where  military  law  was  applicable.  For 
purposes  of  legislation  there  were  associated  with  him 
three  men  who  were  also  "  Judges."  The  fear  of  Con- 
gress that  even  the  Governor  and  Judges  themselves 
might  fall  in  with  some  of  the  many  schemes  of  govern- 
ment which  were  then  prevalent  in  the  Northwest  region 
is  shown  by  the  very  peculiar  limitation  which  they 
placed  upon  the  legislative  power  to  be  exercised  by  the 
Governor  and  the  Judges.  As  a  Legislative  Assembly, 
these  four  men  were  limited  to  simply  making  a  choice  of 
"  such  laws  of  the  original  States,  criminal  and  civil,  as 
may  be  necessary  and  best  suited  to  the  circumstances  of 
the  District,"  and  even  these  were  subject  to  the  disap- 
proval of  Congress. 


The  Regulative  Power,  1 783-1 787    435 

The  provision  for  associating  the  Judges  with  the 
Governor  to  form  the  Legislative  Council  of  the  District 
in  its  first  grade  seems  to  have  been  inserted  for  the  pur- 
pose of  evidencing  the  dispositive  character  of  the  Gov- 
ernment of  the  District  appointed  by  Congress,  as  a 
Substituted  and  Trustee  Government.  It  was  the  evi- 
dent intention  of  Congress  to  form  a  body  which  should 
legislate  only  after  investigation  and  after  weighing  the 
Constitutions  and  laws  of  the  States  as  against  the  local 
circumstances  and  conditions  of  the  District  for  the  pur- 
pose of  harmonizing  the  legislation  of  the  District,  so  far 
as  practicable,  with  that  of  the  States. 

The  Judges  held  ofifige  during  good  behavior.  They 
had  "  a  common  law  jurisdiction."  No  provision  was 
made  for  the  exercise  of  an  equitable  jurisdiction,  and 
the  necessary  implication  is  that  such  jurisdiction  must 
have  remained  in  Congress,  since  if  not  vested  some- 
where, great  injustice  was  certain  to  accrue  to  litigants. 

The  District  was  permitted  to  advance  frpm  the  first  to 
the  second  grade  when  its  free  male  inhabitants  numbered 
five  thousand.  If  they  "  gave  proof  to  the  Governor" 
of  this  fact,  they  were  entitled  to  "  receive  authority 
with  time  and  place,  to  elect  Representatives  from  their 
counties  or  townships,  to  represent  them  in  General 
Assembly."  There  was  to  be  one  Representative  for 
each  five  hundred  of  free  male  inhabitants  until  the 
number  should  reach  twenty-five,  when  the  number  and 
proportion  was  to  be  regulated  by  the  Legislature.  The 
right  to  hold  the  office  of  Representative  was  carefully 
hedged  about  by  restrictions,  and  it  was  distinctly  as- 
sumed that  there  was  no  "  citizenship  of  the  United 
States  "  and  that  the  persons  in  the  Western  region  were 
divided  into  only  two  classes,  namely,  "  citizens  of  one 
of  the  United  States  "  and  "  residents  of  the  District." 
This  is  shown  by  the  clauses  relating  to  eligibility  ta 
office  and  to  the  voting  franchise. 


43^  The  Administration  of  Dependencies 

The  provision  as  to  eligibility  to  the  office  of  Represen- 
tative was  as  follows : 

Provided,  That  no  person  be  eligible  or  qualified  to  act  as  a 
Representative  unless  he  shall  be  a  citizen  of  one  of  the  United 
States  or  have  resided  within  the  District  three  years ^  and  shall 
likewise  hold  in  his  own  right,  in  fee  simple,  two  hundred 
acres  of  land  within  the  same. 

The  provision  as  to  eligibility  to  vote  for  Representa- 
tive was: 

Provided  also.  That  a  freehold  in  fifty  acres  of  land  in  the 
District,  if  a  citizen  of  any  of  the  United  States,  and  two 
years  residence  in  the  District^  if  a  foreigfier,  in  addition,  shall 
be  necessary  to  qualify  a  man  as  an  elector  for  said  Repre- 
sentatives. 

The  provision  contained  in  the  Resolution  of  1784 
which  permitted  the  Colonies  in  the  Western  region  to 
have  a  delegate  in  Congress  with  power  to  debate  but 
without  the  power  to  vote  was  omitted.  Provision  was 
made  for  the  admission  of  the  Colonies  to  the  Union  as 
States  when  any  one  of  them  should  have  fi  population 
equal  to  one  thirteenth  of  the  population  of  the  original 
States. 

The  provision  concerning  the  General  Assembly  of  the 
District  was  as  follows : 

The  General  Assembly  shall  consist  of  the  Governor,  a 
Legislative  Council, — to  consist  of  five  Members,  to  be  ap- 
pointed by  the  United  Slates  in  Congress  Assembled,  to  con- 
tinue in  office  during  pleasure,  any  three  of  whom  shall  be  a 
quorum, — and  a  House  of  Representatives,  who  shall  have  a 
legislative  authority  complete  in  all  cases  for  the  good  govern- 
ment of  the  said  District." 

The  Congress,  however,  was  most  cautious  in  reserv- 


The  Regulative  Power,  1 783-1 787    437 

ing  to  itself  complete  control  of  the  whole  Colonial  Gov- 
ernment. In  the  first  place,  it  was  provided  that  the 
Governor,  Judges,  Legislative  Council,  Secretary,  and  all 
other  officers  except  the  Representatives  in  the  Lower 
House  of  the  Legislature  should  be  appointed  by  Con- 
gress and  should  take  "an  oath  or  affirmation  of  fidelity ; 
the  Governor  before  the  President  of  Congress,  and  all 
other  officers  before  the  Governor."  All  legislation  en- 
acted by  the  Governor  and  Judges  was  to  be  transmitted 
to  Congress  and  was  to  be  subject  to  its  disapproval.  The 
Governor  was  given  an  absolute  power  of  veto  over  all 
laws  passed  by  the  Legislature,  by  the  provision  according 
to  which  "  no  Bill  or  Legislative  Act  whatever  shall  be 
valid  or  of  any  force  without  his  consent,"  and  also  a 
power  "to  convene,  prorogue  and  dissolve  the  General 
Assembly,  when  in  his  opinion  it  shall  be  expedient." 
As  the  Governor  had  thus  full  power  to  prevent  or  nullify 
all  objectionable  Colonial  legislation,  and  as  Congress 
had  full  power  over  the  Governor  by  virtue  of  its  ability 
to  revoke  his  commission  at  any  time,  the  ultimate  con- 
trol was  kept  in  the  hands  of  Congress. 

In  addition  to  these  reservations  of  power,  Congress 
had  the  power  of  modifying  or  rescinding  the  whole 
Ordinance  by  amendment  or  repeal.  It  did  not  purport 
to  be  a  "Charter  of  Compact,"  in  whole  or  in  part.  It 
was  merely  an  "Ordinance."  The  action  of  Congress  in 
1784  had  been  by  a  "Resolution  "  which,  when  accepted 
by  the  District,  was  to  become  a  "Charter  " — that  is,  the 
evidence — of  a  "Compact."  The  Ordinance  of  1787,  as 
originally  contemplated  by  Congress,  was  to  be  an  act 
emanating  exclusively  from  Congress  and  subject  to 
modification  or  rescission  without  consulting  the  District. 
According  to  the  Ordinance  as  reported,  therefore,  Con- 
gress reserved  to  itself  the  right,  even  after  the  District 
had  formed  its  own  partly  elective  Government,  to  de- 
stroy the  elective  part  of  the  Government  and  place  the 


43^  The  Administration  of  Dependencies 

District  under  the  charge  of  a  Government  wholly  ap- 
pointed by  Congress.  The  theory  of  the  Ordinance  as 
reported  was,  therefore,  that  the  Congress,  as  the  repre- 
sentative of  the  Confederation,  had  power  to  make  all 
rules  and  regulations  for  the  District  that  it  might  think 
proper. 

On  July  9,  the  Committee  was  again  reconstituted, 
Carrington  of  Virginia  being  made  the  chairman,  and 
the  other  members  being  Dane,  Richard  Henry  Lee, 
Kean,  and  Smith.  The  Committee  immediately  set  to 
work  in  hot  haste  to  amend  the  Ordinance,  and  in  two 
days  had  brought  it  into  substantially  the  form  in  which 
it  was  finally  adopted.  The  action  of  Congress  upon  the 
report  of  this  Committee  was  as  prompt  as  the  action  of 
the  latter  had  been.  On  the  second  day  after  the  Com- 
•mittee  reported  (July  13),  the  Ordinance  was  adopted. 

Carrington's  Committee  ameliorated,  in  some  small  de- 
tails, the  general  regime  according  to  which  the  Northwest 
Territory  was  to  be  administered  until  the  Districts  were 
admitted  into  the  Union.  The  Governor  and  other 
officers  and  the  Representatives  and  their  electors  were 
required  to  be  residents  of  the  District,  and  the  House  of 
Representatives  was  allowed  to  nominate  persons  to  Con- 
gress from  whom  the  members  of  the  Legislative  Council 
were  to  be  selected.  The  District  was  allowed  to  have 
a  delegate  in  Congress,  with  power  to  debate  but  not  to 
vote.  Still,  the  Government  provided  for  in  the  Ordi- 
nance was  unmistakably  "a  Colonial  Government  similar 
to  that  which  existed  in  these  States  previous  to  the 
Revolution."  The  great  change  in  the  Ordinance  made 
by  this  Committee  consisted  in  adding  to  it  six  sections 
which  were  declared  to  be  "Articles  of  Compact  between 
the  original  States  and  the  people  and  States  in  the  said 
territory,"  which  were  to  "forever  remain  unalterable, 
unless  by  common  consent." 

It  had  evidently  been  objected  to  the  Ordinance  as  re- 


The  Regulative  Power,  1 783-1 787    439 

ported  that  it  did  not  sufficiently  qualify  and  limit  the 
power  of  the  Confederation  over  the  dependencies,  so  as 
to  make  it  clear  that  the  relationship  between  them  was 
founded  on  compact  and  not  on  the  mere  will  of  the 
Confederation,  and  was  hence  a  power  of  disposition; 
and  that  it  did  not  make  it  sufficiently  clear  on  what 
principles  Congress  intended  to  act  in  negativing  the 
action  of  the  General  Assembly  of  the  District. 

The  first  of  the  objections  was  met  by  inserting  pro- 
visions in  the  Articles  of  Compact,  by  which  certain  of 
the  implied  terms  and  conditions  of  the  compact  growing 
out  of  the  relationship  were  reduced  to  writing  and 
agreed  to  be  permanent  unless  changed  by  mutual  con- 
sent. The  relationship  was  thus  recognized  as  founded 
on  contract  between  States  and  hence  as  a  federal  and 
constitutional  relationship. 

The  second  objection  was  met  by  making  the  Articles 
of  Compact  the  basis  upon  which  the  power  of  the  Con- 
federation to  negative  Colonial  legislation  should  proceed. 

The  position  of  the  American  Colonies  on  the  subject 
of  the  right  of  the  Imperial  State,  through  its  Sovereign, 
to  negative  colonial  legislation  was  perfectly  clear.  In 
the  Declaration  and  Resolves  of  the  Continental  Con- 
gress of  October  14,  1774,  it  had  been  declared: 

[The  Colonies]  are  entitled  to  "a  free  and  exclusive  power 
of  legislation,  in  their  Provincial  Legislatures,  ...  in  all 
cases  of  taxation  and  internal  polity,  subject  only  to  the  nega- 
tive of  their  Sovereign,  in  such  manner  as  has  been  heretofore 
used  and  accustomed. 

As  the  Congress,  acting  for  the  Confederation,  was  rec- 
ognized as  the  Sovereign  of  the  Northwest  Territory,  it 
followed  that  it  might  rightfullyexercise  the  power  to  neg- 
ative Colonial  legislation,  consistently  with  the  principles 
for  which  the  American  Colonies  stood  in  the  Revolution. 


440  The  Administration  of  Dependencies 

It  was  important,  in  the  interests  of  harmony,  how- 
ever, to  arrange  that  all  action  of  the  Confederation,  by 
its  Congress  or  by  its  officials,  having  the  effect  to  nega- 
tive Colonial  legislation,  should  occur  under  such  con- 
ditions as  to  make  acquiescence  in  it  by  the  Colonies  as 
likely  as  possible.  This  was  accomplished  by  inserting 
such  of  the  conditions  of  the  relationship  as  the  Con- 
federation was  willing  to  recognize  as  permanent  in  the 
Articles  of  Compact,  and  by  making  the  validity  of  all 
legislation  of  the  Colonial  Assembly  conditional  upon  its 
not  being  "repugnant  to  the  principles  and  articles  in 
this  Ordinance  established  and  declared."  The  Con- 
gress did  not  in  any  way  commit  itself  to  the  proposition 
that  the  conditions  of  the  relationship  contained  in  the 
Articles  of  Compact  were  the  only  conditions  on  which  it 
would  insist,  or  the  only  conditions  on  which  the  District 
might  properly  insist.  It  was  provided  simply  that 
"The  following  Articles  shall  be  considered  as  Articles 
of  Compact,"  etc. 

The  first  two  Articles  were  a  declaration  that  indi- 
viduals within  the  District  should  have  the  natural  rights 
of  life,  liberty,  and  property.  The  third  provided  for 
the  encouragement  of  education  and  forbade  mistreat- 
ment by  the  District  of  the  Indians.  A  violation,  by  a 
legislative  act,  in  a  dependency,  of^any  of  these  principles 
would  justify  an  Imperial  State,  in  the  exercise  of  its 
power  of  disposition,  in  negativing  such  act  even  though 
there  were  no  Articles  of  Compact  between  it  and  the 
dependency  giving  it  this  power,  but,  as  it  was  possible 
to  cover  this  ground  by  an  express  contract,  this  was 
done. 

The  fourth  Article  provided  that  the  Northwest  Terri- 
tory should  "forever  remain  a  part  of  this  Confederacy 
of  the  United  States  of  America,  subject  to  the  Articles 
of  Confederation  and  to  such  alterations  therein  as  shall 
be  constitutionally  made,  and  to  all  the  Acts  and  Ordi- 


The  Regulative  Power,  1 783-1 787    441 

nances  of  the  United  States  conformable  thereto."  To 
"forever  remain  a  part  of  this  Confederacy  "  meant  that 
they  were  to  be  either  "parcel  of  the  Realm  in  tenure" 
or  "parcel  of  the  body  of  the  Realm,"  to  use  the  old  dis- 
tinction used  in  Calvin  s  Case,  to  which  reference  is  evi- 
dently made — that  is,  that  they  were  forever  to  remain 
either  in  the  position  of  dependencies  of  the  Union  or  of 
States  admitted  into  the  Union  by  representation  in  its 
Central  Government,  and  were  not  to  have  the  right  of 
secession  either  from  the  Federal  Empire  or  from  the 
Federal  State.  This  was  unnecessary,  since  the  power  of 
the  Confederation  was  recognized  as  being  a  power  of 
disposition.  Still  it  was  an  important  matter  and  proper 
to  be  made  the  subject  of  an  express  contract. 

The  fourth  Article  also  provided  that  the  District 
should  be  subject  to  pay  its  proportional  part  of  the 
federal  debts  and  of  the  current  expenses  of  the  whole 
Government.  An  Imperial  State  exercising  the  power 
of  disposition  might  properly  have  imposed  this  obliga- 
tion upon  a  dependency  situated  as  was  the  District,  but 
it  was  a  matter  about  which  disputes  might  arise  and  hence 
properly  settled  by  express  contract.  The  same  may  be 
said  of  the  provisions  of  the  fourth  Article  according  to 
which  the  proprietary  title  of  the  Confederation  to  the 
soil  of  the  unappropriated  parts  of  the  District  was  to  be 
recognized  by  the  District,  by  which  this  land  was  to 
be  free  from  taxes,  by  which  non-residents  were  not  to  be 
taxed  higher  than  residents,  and  by  which  the  navigable 
rivers  in  the  District  were  declared  to  be  free  and  com- 
mon highways.  These  were  questions  about  which  a 
difference  of  opinion  was  possible  and  hence  properly  the 
subject  of  an  express  contract. 

The  fifth  Article  recognized  the  obligation  of  the 
United  States  under  the  resolution  of  October  lo,  1780, 
to  lay  out  the  Western  region  into  distinct  republican 
States   and   to   admit   them   into  the  Union   on    equal 


442  The  Administration  of  Dependencies 

terms.  Such  contractual  obligations  would  of  course 
be  recognized  by  any  State  or  tribunal  exercising  dis- 
positive power,  but  it  was  advisable  to  formally  recognize 
a  direct  obligation  existing  between  the  Confederation 
and  the  District  by  means  of  a  document  evidencing 
the  contract. 

Incidentally  it  may  be  noticed  that  this  Article  finally 
solved  the  problem  raised  by  the  provision  of  the  resolu- 
tion of  October  lo,  1780,  which  required  that  the  new 
States  in  the  Western  region  should  be  not  less  than  one 
hundred  nor  more  than  one  hundred  and  fifty  miles 
square.  It  provided  that  not  less  than  three  nor  more 
than  five  States  should  be  laid  out  in  the  region,  but 
made  this  provision  conditional  on  the  consent  of  Vir- 
ginia, which  had  made  its  cession  conditional  on  the  ful- 
filment by  the  Union  of  the  resolution  of  October  10, 
1780;  and  Virginia  subsequently  consented  to  this  change. 

The  sixth  Article  forbade  slavery  in  the  District.  An 
Imperial  State  exercising  a  power  of  disposition  would  not 
have  been  likely  to  permit  slavery  in  a  region  situated  as 
was  the  Northwest  Territory.  Still,  considering  the  vio- 
lence of  the  dispute  on  the  subject,  it  was  eminently 
proper  to  take  advantage  of  the  power  of  the  Confedera- 
tion to  enter  into  express  contracts  with  its  dependencies 
and  thus  settle  the  question. 

The  Ordinance  was  thus  a  compromise  between  the 
Resolution  of  1784  and  the  Ordinance  as  reported  in  1786 
and  again  on  April  26,  1787.  The  former  had  pushed 
the  principle  that  the  relationship  between  the  Confedera- 
tion and  its  dependencies  was  a  relationship  founded  on 
compact  to  an  absurdity,  by  assuming  that  the  relation- 
ship could  not  exist  except  as  the  result  of  an  express 
contract.  The  Ordinance  as  reported  in  1786  and  on 
April  26,  1787,  had  left  it  doubtful  whether  the  relation- 
ship was  founded  on  compact  at  all.  The  Ordinance  as 
finally  adopted  proceeded  on  the  theory  that  the  rela- 


The  Regulative  Power,  1 783-1 787    443 

tionship  was  wholly  founded  on  an  implied  contract,  but 
that  the  Imperial  State  and  any  dependency  might,  by 
an  express  contract,  reduce  the  conditions,  in  any  respects 
they  saw  fit,  to  writing  and  agree  that  in  these  respects 
no  change  should  be  made  except  by  mutual  consent, — 
the  dispositive  power  of  the  Imperial  State  remaining 
unchanged  as  respects  matters  not  reduced  to  the  form 
of  express  contract. 

It  has  been  shown  that  the  Ordinance  as  adopted 
recognized,  first,  that  the  power  of  the  Confederation  was 
a  power  of  disposition,  whether  its  action  was  constructive 
and  positive  or  destructive  and  negative,  and,  secondly, 
that  the  power  of  disposition  implied  the  power  to  con- 
tract with  a  dependency.  The  Ordinance  had,  however, 
another  very  important  effect, — it  recognized  that  the 
power  of  the  Confederation  over  the  dependencies  was 
plenary — that  it  was  a  power  to  dispose  of  them  "in  all 
cases  whatsoever,"  and  to  regulate  them  accordingly. 
None  of  the  provisions  relating  to  the  form  of  govern- 
ment of  the  dependencies  in  the  Western  region,  or  to 
the  powers  to  be  exercised  by  the  Union  over  these  de- 
pendencies until  their  admission  into  the  Union  as  States 
on  equal  terms  were  incorporated  in  the  Articles  of  Com- 
pact. They  were  all  in  the  part  of  the  Ordinance  which 
was  a  regulation  made  under  the  power  of  disposition. 
These  provisions  were,  of  course,  subject  to  modification 
or  rescission  by  Congress  at  any  time.  Congress,  by  thus 
carefully  leaving  these  provisions  out  of  the  Articles  of 
Compact,  in  effect  declared  that  the  powers  of  the  Con- 
federation over  the  dependencies,  being  powers  of  dispo- 
sition based  on  an  implied  contract,  were  in  the  nature 
of  things  limited  only  by  the  necessity  of  each  case,  and 
that  the  Confederation  had  the  right  to  finally  determine 
what  the  necessity  in  each  case  demanded,  subject  to  any 
express  contract  of  the  Union  relating  to  the  manner  of 
disposition.     Where  the  Union,  by  express  contract,  had 


444  The  Administration  of  Dependencies 

obligated  itself  to  exercise  its  powers  of  disposition  in  a 
certain  manner,  necessity  of  course  demanded  that  in  its 
regulations  it  should  act  in  this  manner.  The  plenary 
nature  of  the  regulative  power  which  was  implied  in  the 
dispositive  power  was  thus  declared.  The  Union  was 
declared  to  have  power  to  make  necessary  or  needful 
rules  and  regulations  in  all  cases  whatsoever. 

The  Ordinance,  therefore,  settled  the  question  con- 
cerning the  character  and  extent  of  the  regulative  power 
of  the  Union  over  its  dependencies.  It  recognized  the 
Union  as  having  power  to  make  rules  and  regulations  in 
execution  of  and  necessarily  incidental  to  its  power  of 
disposition  in  all  cases  whatsoever,  subject  to  all  express 
contracts  of  the  Union  with  foreign  States,  with  the 
States  of  the  Union,  or  with  the  dependencies  of  the 
Union — that  is,  as  a  power  to  make  all  needful  rules  and 
regulations  respecting  the  dependencies. 


CHAPTER  XXIII 

THE    IMPERIAL   POWER,    1 787 

THE  first  resolution  adopted  by  the  Convention  for 
framing  the  Constitution   of  the  United   States, 
which  was  the  basis  of  all  its  subsequent  action, 
read,  according  to  the  report  of  Madison,  in  his  Journal 
of  the  Federal  Convention,  as  follows : 

Resolved :  That  a  National  Government  ought  to  be  estab- 
lished, consisting  of  a  Supreme  Legislative,  Executive,  and 
Judiciary. 

If  the  American  Confederation  was  to  be  reorganized  so 
as  to  be  a  true  "Nation  " — that  is,  a  State — with  a  Chief 
Executive,  it  was  plainly  necessary,  if  traditions  were  to 
be  observed,  that  the  Executive  should  administer  the 
dependencies  of  the  State  under  the  superintendence  of 
the  Legislature.  The  power  of  disposition  was  a  power 
neither  strictly  executive  nor  legislative,  but  which  more 
closely  resembled  the  executive  than  the  legislative 
power,  since  it  was  essentially  judicative  in  its  character. 
Still,  though  the  American  Colonies,  during  their  contest 
with  Great  Britain,  had  uniformly  insisted  that  the  po- 
litical connection  between  them  and  the  State  of  Great 
Britain  was  through  the  Executive  of  Great  Britain, 
who  was  ex  officio  the  Disposer  of  the  Empire,  the  anti- 
Imperialists  had  never  succeeded  in  committing  the 
Colonies  to  the  proposition  that  the  Legislature  of  Great 
Britain  had  no  power  in  the  Empire.  Dickinson  had 
prevented  the  adoption  of  the  statement  to  this  effect  in 

445 


44^  The  Administration  of  Dependencies 

Jefferson's  draft  of  the  Declaration  on  Taking  up  Arms, 
and  the  Federal-Imperialists  had  prevented  the  adoption 
of  a  similar  statement  in  his  draft  of  the  Declaration  of 
Independence.  The  American  Union  was,  therefore,  in 
a  position,  thanks  to  the  Federal-Imperialists,  where 
it  could  place  the  responsibility  for  the  habitual  per- 
formance of  its  Imperial  obligations  either  on  the  Execu- 
tive, as  the  expert  branch  of  the  Government,  subject  to 
the  superintendence  of  the  Legislature,  or  on  the  Legis- 
lature, as  the  popular  branch  of  the  Government,  subject 
to  the  superintendence  of  the  Executive.  It  could  not, 
however,  without  national  self-stultification,  after  having 
insisted  that  the  Chief  Executive  of  the  State  of  Great 
Britain  had  power  to  nullify  Acts  of  Parliament  relating 
to  the  American  Colonies  as  "pretended  "  and  "unwar- 
rantable "  legislation,  confer  upon  its  own  Legislature 
the  exclusive  power  to  administer  the  dependencies 
of  the  Union,  or  even  require  the  Chief  Executive  to  ex- 
ecute the  will  of  the  Legislature  relating  to  the  depend- 
encies in  all  cases. 

In  examining  the  proceedings  of  the  Convention, 
relating  to  administration  of  the  dependencies,  therefore, 
the  prime  interest  naturally  attaches  to  its  action  con- 
cerning the  powers  of  the  Chief  Executive  of  the  Union. 

Randolph's  resolutions,  which  were  taken  as  the  basis 
of  the  action  of  the  Convention,  contained  the  following 
three  provisions  bearing  on  the  subject  of  the  adminis- 
tration of  the  dependences : 

6.  That  the  National  Legislature  ought  to  be  empowered 
to  enjoy  the  legislative  rights  vested  in  Congress  by  the  Con- 
federation ;  and  moreover  to  legislate  in  all  cases  to  which  the 
separate  States  are  incompetent,  or  in  which  the  harmony  of 
the  United  States  may  be  interrupted  by  the  exercise  of  in- 
dividual legislation. 

7.  That  a  National  Executive  be  instituted;     .     .     .     and 


The  Imperial  Power,  1787  447 

that  besides  a  general  authority  to  execute  the  National  laws, 
it  ought  to  enjoy  the  executive  rights  vested  in  Congress  by 
the  Confederation. 

10.  That  provision  ought  to  be  made  for  the  admission  of 
States  lawfully  arising  within  the  limits  of  the  United  States, 
whether  from  a  voluntary  junction  of  government  and  ter- 
ritory, or  otherwise,  with  the  consent  of  a  number  of  voices  in 
the  National  Legislature  less  than  the  whole. 

The  expression  "rights  vested  in  the  Confederation  " 
was  wide  enough  to  include  both  those  vested  in  Con- 
gress by  the  Articles  of  Confederation  and  those  vested 
in  it  by  the  resolution  of  October  lo,  1780  and  the  ces- 
sions of  the  States  made  in  pursuance  of  that  resolution. 

Considering  the  character  of  the  power  exercised  by 
the  Confederation  in  administering  its  dependencies, 
it  was  doubtful  whether  this  power  was  intended  to  have 
been  granted  to  the  National  Legislature  by  the  sixth 
resolution  as  a  "legislative  right,"  or  to  the  National 
Executive,  under  the  seventh  resolution,  as  an  "execu- 
tive right."  As  all  the  rights  exercised  by  the  Congress 
of  the  Confederation  had  been  recognized  as  being  essen- 
tially executive  rights,  and  as  it  had  claimed  that  it  was 
the  successor  of  the  King  of  Great  Britain  for  the  purpose 
of  administering  the  Western  region,  the  natural  infer- 
ence would  seem  to  be  that  it  was  intended  to  make  the 
Chief  Executive  the  acting  representative  of  the  Union 
in  the  administration  of  the  dependencies,  subject  to  the 
superintendence  of  the  Legislature. 

The  word  "arising"  in  the  tenth  resolution  was  a  word 
of  sufficiently  broad  meaning  to  cover  the  case  of  the 
creation  of  a  State  by  the  action  of  the  squatters  or 
settlers  on  the  public  lands  in  joining  themselves,  their 
families,  their  possessions  and  lands,  and  uniting  under  a 
common  authority  (which  was  the  case  of  the  State  of 
Franklin  and  the  State  of  Vermont),  or  of  the  creation 


448  The  Administration  of  Dependencies 

of  a  State  by  the  authority  and  direction  of  a  State 
(which  was  the  case  of  the  District  of  Kentucky;;  yet  it 
rather  implied  that  such  communities  were  essentially 
distinct  personalities,  growing  like  individuals  by  their 
own  exertions,  and  not  things  moulded  into  shape  by  a 
force  from  without. 

These  words  "  lawfully  arising,"  in  connection  with 
the  general  powers  of  legislation  given  to  Congress,  were, 
it  seems,  considered  sufficient  for  a  considerable  time  to 
designate  the  theory  of  the  administration  of  dependen- 
cies. The  word  "arising  "  was  doubtless  used  to  satisfy 
the  anti-Imperialist  faction  in  the  Convention,  and  the 
word  "  lawfully  "  to  satisfy  the  Federal-Imperialist 
faction. 

The  Congress,  in  Committee  of  the  Whole,  unanimously 
agreed  that  all  the  legislative  powers  of  the  existing 
Congress  ought  to  be  transferred  to  the  National  Legis- 
lature, and  the  Committee  of  the  Whole  reported  Ran- 
dolph's sixth  resolution  with  the  single  change  of  the 
word  " possess  "  for  the  expression  "empowered  to  en- 
joy." The  provision  with  regard  to  the  National  Execu- 
tive was,  however,  changed  so  as  to  read  as  follows : 

Resolved:  That  a  National  Executive  be  instituted,  to  con- 
sist of  a  single  person;  to  be  chosen  by  the  National  Legisla- 
ture, for  the  term  of  seven  years;  with  power  to  carry  into 
execution  the  National  laws;  to  appoint  to  offices  in  cases  not 
otherwise  provided  for;  to  be  ineligible  a  second  time;  and  to 
be  removable  on  impeachment  and  conviction  of  malpractices 
or  neglect  of  duty;  to  receive  a  fixed  stipend  by  which  he  may 
be  compensated  for  the  devotion  of  his  time  to  the  public 
service,  to  be  paid  out  of  the  National  Treasury, 

Madison,  on  June  i,  attempted  to  have  a  clause  added 
which  should  provide  that  the  Executive  should  be 
empowered  "to  execute  such  other  powers  not  legisla- 


The  Imperial  Power,  1787  449 

tive  or  judiciary  in  their  nature,  as  may  from  time  to 
time  be  delegated  by  the  National  Legislature,"  but  the 
clause  was  stricken  out  on  Pinckney's  objection  that 
this  power  was  included  in  the  power  to  carry  into  effect 
the  National  laws;  Massachusetts,  Virginia,  and  South 
Carolina  voting  in  favor  of  the  retention  of  the  clause. 

In  the  Committee  of  the  Whole,  the  tenth  resolution 
relating  to  "new  States  lawfully  arising"  was  left  un- 
changed. 

The  Committee  of  the  Whole  reported  on  June  13. 
The  debate  on  this  report  continued  until  July  26, 
when  the  resolutions  of  the  Committee  of  the  Whole,  as 
amended,  were  referred  to  a  Committee  on  Detail,  com- 
posed of  Rutledge,  Randolph,  Gorham,  Ellsworth,  and 
Wilson.  During  this  debate,  on  July  17,  the  provision 
relating  to  the  National  Legislature  was  amended  so  as 
to  read : 

That  the  National  Legislature  ought  to  possess  the  legis- 
lative rights  vested  in  Congress  by  the  Confederation;  and, 
moreover,  to  legislate  in  all  cases  for  the  general  interests  of 
the  Union,  and  also  in  those  to  which  the  States  are  separately 
incompetent,  or  in  which  the  harmony  of  the  United  States 
may  be  interrupted  by  the  exercise  of  individual  legislation. 

The  provision  relating  to  the  Executive  was  amended 
by  striking  out  the  clause  making  him  ineligible  for 
re-election.  That  relating  to  the  admission  of  new  States 
into  the  Union  was  not  changed  at  all. 

As  the  resolutions  went  to  the  Committee  on  Detail, 
therefore,  they  either  gave  the  Congress  the  exclusive 
power  of  legislating  for  the  dependencies,  as  a  part  of 
"the  general  interests  of  the  Union,"  or  they  left  the 
whole  subject  of  the  respective  powers  of  the  Legislature 
and  the  Executive  in  the  administration  of  the  depend- 
encies to  be  implied  from  the  words  "lawfully  arising." 
•9 


450  The  Administration  of  Dependencies 

The  Committee  on  Detail  seem  to  have  taken  the  latter 
view,  for  they  reported  a  draft  of  Constitution  in  which 
was  substituted,  instead  of  the  general  grant  of  powers 
to  the  Legislature  contained  in  the  resolution,  a  specifi- 
cation of  its  powers  substantially  like  that  contained  in 
Article  I.,  Section  8,  of  the  Constitution  as  adopted,  in 
which  specification  no  power  was  given  to  the  Legisla- 
ture respecting  the  dependencies. 

In  the  draft,  the  Committee  on  Detail  inserted  a  clause 
evidently  intended  to  dignify  the  office  of  Executive 
and  to  render  it  independent  of  the  Legislature  to  a 
proper  extent.  During  the  debates  on  the  resolutions  re- 
ported by  the  Committee  of  the  Whole,  it  had  been  recog- 
nized that  it  would  not  do  to  subordinate  the  executive 
wholly  to  the  legislative  part  of  the  Government — that 
the  real  question  was  how  to  balance  the  Executive,  as  the 
expert  part  of  the  Government,  as  against  the  Legisla- 
ture, the  popular  part.  The  question  of  the  character 
of  the  Executive  was  one  of  the  last  questions  dis- 
cussed before  the  reference  to  the  Committee  on  Detail, 
and  during  this  debate  the  tendency  of  the  Convention 
towards  making  the  Executive  responsible  to  the  people, 
rather  than  to  the  Legislature,  was  clearly  evident.  The 
proposition  that  the  Executive  should  be  chosen  by  the 
Legislature  was  warmly  debated,  and  passed  by  a  vote  of 
six  States  to  three,  Pennsylvania,  Delaware,  and  Mary- 
land voting  against  it,  Massachusetts,  New  York,  and 
Rhode  Island  not  voting,  and  Virginia  being  divided — 
Washington  and  Madison  voting  against  it. 

The  Committee  on  Detail  reported  a  clause  relating  to 
the  executive  power  which  read,  in  part,  as  follows : 

The  executive  power  of  the  United  States  shall  be  vested 
in  a  single  person.  His  style  shall  be  **  The  President  of  the 
United  States  of  America,"  and  his  title  shall  be  "  His  Excel- 
lency," 


The  Imperial  Power,  1787  451 

As  the  draft  made  by  the  Committee  on  Detail  stood, 
the  President  was  given  the  exclusive  power  of  disposition 
of  the  dependencies.  The  powers  of  Congress  were 
distinctly  specified  in  that  draft,  and  no  power  whatever 
was  given  to  it  over  the  dependencies.  The  only  two 
references  in  that  draft  to  the  administration  of  depen- 
dencies were  contained  in  the  two  following  paragraphs : 

As  the  proportions  of  numbers  in  different  States  will  alter 
from  time  to  time;  as  some  of  the  States  may  hereafter  be 
divided;  as  others  may  be  enlarged  by  addition  of  territory; 
as  two  or  more  States  may  be  united;  as  new  States  will  be 
erected  within  the  limits  of  the  United  States, — the  Legislature 
shall,  in  each  of  these  cases,  regulate  the  number  of  represen- 
tatives by  the  number  of  inhabitants,  according  to  the  pro- 
visions hereinafter  made,  at  the  rate  of  one  for  every  forty 
thousand. 

New  States  lawfully  constituted  or  established  within  the  limits 
of  the  United  States  may  be  admitted  by  the  Legislature  into 
this  Government.  ...  If  a  new  State  shall  arise  within 
the  limits  of  any  of  the  present  States,  the  consent  of  the  Legis- 
lature of  such  States  shall  be  also  necessary  to  its  admission. 

The  power  of  the  American  Union  over  its  dependen- 
cies was  thus  declared,  in  this  draft,  a  power  "  to  erect 
new  States  "  and  "to  constitute  or  establish  new  States." 
The  constitution  and  establishment  of  new  States  was 
recognized  as  an  act  to  be  done  under  the  Constitution, 
not  only  by  the  meaning  of  the  words  "erected,"  "con- 
stituted," and  "established,"  but  also  by  the  coupling  of 
the  word  "lawfully  "  with  the  words  "constituted  and 
established." 

That  the  Executive  was  to  have  powers  which  the 
Congress  itself  was  to  execute  by  its  legislation  was 
shown  by  the  clause  in  this  draft,  after  the  general  speci- 
fication of  the  powers  of  Congress,  which  provided  that 
the  Congress  should  have  power: 


452  The  Administration  of  Dependencies 

To  make  all  laws  which  shall  be  necessary  and  proper  for 
carrying  into  execution  the  foregoing  powers,  and  all  other 
powers  vested  by  this  Constitution  in  the  Government  of  the 
United  States,  or  in  any  Department  or  Office  thereof. 

It  may  be  noticed,  in  passing,  that  this  provision  was 
incorporated  in  the  Constitution  as  adopted,  with  the 
single  change  of  the  word  "office  "  to  "officer." 

In  the  draft  of  August  6,  reported  by  the  Committee 
on  Detail,  the  general  provisions  as  to  the  legislative,  ex- 
ecutive, and  judicial  powers  were  as  follows: 

The  legislative  power  shall  be  vested  in  a  Congress,  to  con- 
sist of  two  separate  and  distinct  bodies  of  men,  a  House  of 
Representatives  and  a  Senate. 

.  The  executive  power  of  the  United  States  shall  be  vested  in 
a  single  person.  His  style  shall  be  "The  President  of  the 
United  States  of  America,"  and  his  title  shall  be  "  His  Excel- 
lency." 

The  judicial  power  of  the  United  States  shall  be  vested  in 
one  Supreme  Court,  and  in  such  inferior  courts,  as  shall,  when 
necessary,  from  time  to  time,  be  constituted  by  the  Legislature 
of  the  United  States. 

In  the  Constitution,  as  adopted,  these  general  powers 
are  granted  in  the  following  words : 

All  legislative  powers  herein  granted  shall  be  vested  in  a 
Congress  of  the  United  States,  which  shall  consist  of  a  Senate 
and  a  House  of  Representatives. 

The  executive  power  shall  be  vested  in  a  President  of  the 
United  States  of  America. 

The  judicial  power  of  the  United  States  shall  be  vested  in 
one  Supreme  Court  and  such  inferior  courts  as  the  Congress 
may  from  time  to  time  ordain  and  establish. 

Between  the  time  of  the  report  of  the  Committee  on 
Detail,  therefore,  and  the  close  of  the  Convention,  the 


The  Imperial  Power,  1787  453 

general  words  relating  to  the  powers  of  the  National 
Legislature  were  restricted,  while  those  relating  to  the 
National  Executive  were  enlarged.  The  general  words 
relating  to  the  powers  of  the  National  Judiciary  were 
not  changed. 

These  changes  were  made  by  the  Committee  on  Style 
and  Arrangement,  appointed  September  10,  which  con- 
sisted of  Johnson,  Hamilton,  Gouverneur  Morris,  Madi- 
son, and  King. 

The  President,  therefore,  is  authorized  to  exercise 
"the  executive  power,"  while  the  Congress  is  authorized 
to  exercise  only  "all  legislative  powers  herein  granted," 
— the  word  "herein  "  apparently  referring  to  Article  I. 
of  the  Constitution,  in  which  occurs  the  specification  of 
the  "legislative  powers"  of  Congress.  The  character 
and  extent  of  the  executive  power,  therefore,  is  to  be 
determined  according  to  the  principles  of  the  general 
public  law,  and  by  the  fundamental  principles  and  tra- 
ditions of  the  American  Union ;  while  the  character  and 
extent  of  the  legislative  power  is  to  be  determined  by  the 
express  words  of  specification  in  the  grant.  All  powers 
which  are  strictly  "legislative  "  in  their  nature  granted 
by  the  Constitution  to  Congress  are  undoubtedly  vested 
in  Congress  to  the  exclusion  of  the  President,  but  powers 
not  legislative  are  not  vested  in  it  exclusively.  The 
power  of  the  American  Union  over  its  dependencies,  not 
being  legislative  in  its  nature,  may  therefore,  it  would 
seem,  be  exercised  by  the  President,  as  a  part  of  "the 
executive  power." 

After  the  draft  of  August  6  was  reported  by  the 
Committee  on  Detail,  the  question  plainly  was  whether 
or  not  the  Congress  should  have  any  power  whatever  in 
the  administration  of  the  dependencies.  There  were 
several  reasons  which  doubtless  operated  to  induce  the 
Convention  to  give  it  power  in  this  respect. 

The  first  was  that  it  was  realized  that  since  the  power 


454  The  Administration  of  Dependencies 

of  the  American  Union  over  its  dependencies  was  the 
power  of  a  State  over  other  States,  and  essentially  neither 
legislative,  executive,  nor  judicial  in  its  character,  it  was 
immaterial  by  what  instrumentality  the  Imperial  State 
exercised  its  powers,  provided  it  exercised  them  justly 
and  expertly.  It  might  therefore  exercise  them  through 
its  Legislature — the  popular  branch  of  its  Government — 
or  its  Executive — the  expert  branch — or  by  both,  accord- 
ing as  experience  should  show  that  one  method  of  action 
or  the  other  produced  the  best  results  in  the  particular 
case. 

The  second  was  that  the  "Western  region  had  been 
ceded  to  "the  United  States  in  Congress  assembled," 
and  the  Congress  of  the  Confederation  had  already  made 
a  disposition  of  the  region.  To  have  provided  that  the 
•power  over  the  Western  region  should  be  exercised  by 
the  President  would  have  been  a  reversal  of  policy  which 
would  have  been  likely  to  weaken  the  authority  of  the 
Union. 

Another  reason  was  that  it  was  perceived  that  a  region 
situated  with  relation  to  a  State  as  was  the  Northwest 
Territory  to  the  American  Union  might  properly  be 
subjected  to  the  will  of  the  popular  branch  of  the 
Government.  Such  a  region  must  first  of  all  be  held 
strongly  to  the  State.  If  not,  it  is  likely  to  be  a  base 
of  operations  against  the  State.  As  it  is  ultimately 
to  form  a  part  of  the  body  and  personality  of  the 
State,  its  institutions  must  be  assimilated  to  those  of 
the  State.  If  not,  it  is  likely  to  cause  trouble  when  ad- 
mitted into  the  body  and  personality  of  the  State.  For 
these  purposes,  the  control  of  the  Congress  over  the 
Northwest  Territory  was  to  be  preferred  to  that  of  the 
President.  Though  quite  contrary  to  the  principles  on 
which  the  American  Colonies  had  acted  in  the  Revolu- 
tion, such  a  course  of  action  was  evidently  regarded  as 
justified  by  the  circumstances,  which  were  entirely  dif- 


The  Imperial  Power,  1787  455 

ferent  from  those  which  existed  between  the  American 
Colonies  and  Great  Britain. 

The  resolution  giving  Congress  power  in  the  admin- 
istration of  the  dependencies  was  introduced  by  Madi- 
son. It  will  be  remembered  that  he  had  just  come 
from  Congress,  where,  as  member  of  the  Committee 
on  Foreign  Relations,  he  had  had  many  interviews 
with  the  Spanish  Minister,  Guardoqui,  which  had  shown 
him  the  disaffection  of  the  Western  region  and  the 
danger  of  its  loss  by  the  combined  action  of  Great  Brit- 
ain and  Spain.  He  doubtless  realized  the  hostility  of 
the  Western  region  provoked  by  the  action  of  the  dele- 
gates of  seven  States  in  authorizing  a  treaty  with  Spain 
allowing  that  nation  to  control  the  navigation  of  the 
Mississippi  for  twenty-five  years,  and  felt  that  unless 
the  Congress  under  the  Constitution  were  to  be  given 
power  over  the  Western  region,  the  American  Union 
could  not  fulfil  the  trust  which  it  had  assumed  by  its 
declaration  of  trust  of  October  lo,  1780,  and  that  the 
Western  region  was  lost  to  the  United  States.  He  knew, 
too,  that  while  he  was  in  Congress  it  had  been  thought 
necessary  to  convert  the  whole  Western  region  into  a 
Province  of  the  United  States  under  a  Governor  and 
other  officers  appointed  by  Congress,  and  that  since  he 
had  left  Congress  this  plan  had  been  carried  out  by  the 
enactment  of  an  Ordinance  for  this  purpose. 

On  August  18,  while  the  Article  of  the  draft  contain- 
ing the  specifications  of  the  legislative  powers  of  Con- 
gress was  under  discussion,  Madison  "submitted,  in 
order  to  be  referred  to  the  Committee  on  Detail,  the 
following  powers,  as  proper  to  be  added  to  those  of  the 
General  Legislature  " : 

To  dispose  of  the  unappropriated  lands  of  the  United  States; 
To  institute  temporary  Governments  for  new  States  arising 
therein. 


45^  The  Administration  of  Dependencies 

These  specifications  of  powers  were  a  part  of  a  list  of 
powers  contained  in  the  resolution  "as  proper  to  be 
added  to  those  of  the  General  Legislature,"  in  which  list 
were  included  the  power  to  regulate  Indian  affairs,  to 
legislate  for  the  Federal  District,  to  grant  charters  of  in- 
corporation, to  grant  copyrights  and  patents,  to  establish 
a  university  and  to  acquire  and  maintain  forts  and  public 
buildings.  It  was  evidently  his  intention  that  the  powers 
over  the  dependencies  should  be  put  on  exactly  a  par 
with  the  other  powers  of  Congress. 

On  August  22,  the  Committee  on  Detail  reported  a 
clause  covering  the  ground  of  Madison's  propositions, 
to  be  inserted  in  the  specifications  of  the  powers  of  the 
Legislature  just  before  the  clause  giving  the  Legislature 
power  "  to  make  all  laws  which  shall  be  necessary  and 
proper  for  carrying  into  execution  the  foregoing  powers," 
which  read : 

The  Legislature  of  the  United  States  shall  have  power  to 
provide,  as  may  become  necessary,  from  time  to  time,  for  the 
well-managing  and  securing  the  common  property  and  general 
interests  and  welfare  of  the  United  States  in  such  manner  as 
shall  not  interfere  with  the  government  of  individual  States, 
in  matters  which  respect  only  their  internal  police  or  for  which 
their  individual  authority  may  be  competent. 

The  words  "  to  provide,  as  may  become  necessary  from 
time  to  time,  for  the  well-managing  and  securing  the 
common  property  and  general  interests  "  were  plainly  a 
mere  paraphrase  of  the  expression  "  to  dispose  of  the 
common  property  and  general  interests."  They  imposed 
a  condition  and  trust  upon  the  power  of  Congress,  re- 
quiring Congress  to  "  provide  "  for  the  "  w^/Z-manag- 
ing "  of  the  common  property  and  general  interests. 
They  also  implied  that  the  power  of  Congress  was  to  be 
a  supervisory  or  superintending  nature — that  the  Presi- 


The  Imperial  Power,  1787  457 

dent  was  to  "manage  "  and  "secure  "  the  common  prop- 
erty and  general  interests,  and  that  the  Congress  was  to 
"provide,"  so  that  under  his  management,  the  common 
property  and  general  interests  should  be  "well-managed  " 
and  "secured." 

The  words  "  individual  States  "  plainly  referred  to  the 
dependencies,  and  the  purpose  of  the  clause  "  in  such 
manner  as  shall  not  interfere  with  the  government  of  in- 
dividual States,  in  matters  which  respect  only  their 
internal  police  or  for  which  their  individual  authority 
may  be  competent  "  was  evidently  intended  to  convert 
the  dependencies  into  constitutional  protectorates  as  soon 
as  they  had  attained  even  a  "temporary  form  of  govern- 
ment." In  passing,  it  is  noticeable  that  the  phrase  "in 
matters  which  respect  only  their  internal  police  "  seems 
to  have  been  suggested  by  the  terms  of  the  protectorate 
exercised  by  the  United  States  over  Vermont,  as  shown 
by  its  Constitution,  in  which,  after  placing  the  State  "un- 
der the  direction  of  the  honorable  American  Congress," 
it  was  declared  "  that  the  people  of  this  State  have  the 
sole,  exclusive,  and  inherent  right  of  governing  and 
regulating  the  internal  police  of  the  same." 

The  terms  of  such  a  constitutional  protectorate  would 
have  been  impracticable.  The  Federal  Government  would 
have  been  powerless  to  enact  a  law,  even  after  the  most 
careful  study  and  investigation  had  proved  that  it  was 
necessary  for  the  "  well-managing  and  securing  "  of  the 
dependencies,  and  even  after  the  dependency  interested 
had  refused  to  enact  such  a  law  itself,  if  the  subject-mat- 
ter of  the  law  were  such  that  it  related  to  "  the  internal 
police  "  of  the  dependency  or  if  it  were  such  that  the 
"  individual  authority  "  of  the  dependency  were  "  com- 
petent "  to  its  enactment. 

Such  a  limitation  as  this  would  have  been  a  legal  limi- 
tation on  the  power  of  Congress.  It  would  have  limited 
Congress  to  a  distinct  sphere  of  governmental  action  in 


45^  The  Administration  of  Dependencies 

the  dependencies,  and  the  governments  of  the  depend- 
encies would  have  been  constitutionally  independent  of 
it  in  their  own  spheres.  In  determining  the  limits  of 
such  spheres  of  action,  innumerable  opportunities  for 
dispute  would  have  arisen,  which  would  doubtless  have 
resulted  either  in  the  loss  of  the  dependencies  to  the 
Union,  or  in  the  abandonment  of  the  limitation. 

When  the  Article  of  the  draft  of  the  Committee  on 
Detail  relating  to  the  admission  of  new  States  was 
reached  in  the  regular  order,  on  August  30,  an  amend- 
ment, offered  by  Gouverneur  Morris,  was  unanimously 
adopted,  which  read: 

The  Legislature  shall  have  power  to  dispose  of  and  make  all 
needful  rules  and  regulations  respecting  the  territory  or  other 
.property  belonging  to  the  United  States. 

This  provision  was  incorporated  in  the  Constitution 
verbatim  except  that  the  word  '  *  Legislature' '  was  changed 
to  "Congress." 

The  clause  recommended  by  the  Committee  on  Detail 
was  never  referred  to  after  Morris's  motion  was  adopted. 

In  the  previous  chapters,  it  has  been  noticed  how  the 
expression  "to  dispose  of"  the  dependencies  had  come 
to  be  the  generic  expression  to  describe  the  Imperial 
power  and  trust,  and  why  it  became  necessary  to  add  the 
words  "and  make  all  needful  rules  and  regulations  re- 
specting "  the  dependencies.  By  these  words,  therefore, 
the  Imperial  power  and  trust  undertaken  by  the  Ameri- 
can Union  and  its  people  were  granted  to  and  imposed 
upon  Congress,  and  it  shared  the  responsibility  with  the 
President. 

The  clause,  by  referring  to  "territory  or  other  property 
belonging  /i7the  United  States,"  recognized  the  American 
Empire.  It  has  already  been  pointed  out  that  the  ex- 
pression "belonging  to,"   when   relating   to   lands   and 


The  Imperial  Power,  1787  459 

population  under  the  control  of  a  State,  was  uniformly 
used,  both  in  British  and  American  politics  and  pub- 
lic law,  as  meaning  "dependent  upon."  A  somewhat 
striking  example  of  this  technical  meaning  of  the  expres- 
sion "belonging  to  "  is  found  in  the  Principles  of  Law  and 
Polity  Applied  to  the  American  Colonies,  published  by  Sir 
Francis  Bernard  in  1764.  In  that  work,  he  thus  defined 
the  British  Empire : 

The  Kingdom  of  Great  Britain  has,  belonging  to  and  de- 
pending upon  it,  divers  external  dominions  and  countries;  all 
which,  together  with  Great  Britain,  form  the  British  Empire. 

By  the  use  of  the  expression  "dispose  of  and  make 
all  needful  rules  and  regulations  respecting,"  the  Ameri- 
can Empire  was  recognized  as  a  Federal  Empire.  By 
these  words  the  American  Union  assumed  the  obligation 
of  recognizing  all  the  natural  rights  of  the  depend- 
encies and  their  inhabitants,  and  hence  assumed  the 
responsibility  of  recognizing  the  natural  right  of  state- 
hood, on  the  part  of  communities  external  to  itself  and 
under  its  control,  to  the  degree  and  within  the  area  re- 
quired by  their  conditions  and  circumstances. 

The  use  of  the  words  "rules  and  regulations"  was 
doubtless  due  to  the  fact  that  the  Convention  perceived 
that  the  power  which  an  Imperial  State  exercises  over  a 
dependency  is  a  power  exercised  by  one  State  for  and 
over  another.  The  thought  underlying  these  words  evi- 
dently is  that  the  acts  of  an  Imperial  State  respecting  a 
dependency  are  rules  and  regulations  to  which  its  local 
governmental  action  is  conformed,  and  not  strictly  legis- 
lation or  executive  action. 

Doubtless  the  principal  reason  why  the  word  "need- 
ful "  was  preferred  to  the  word  "necessary  "  or  the  words 
"necessary  and  proper,"  was  that  they  limited  the  power 
of  Congress,  in  general,  to  the  power  of  supervision  or 


460  The  Administration  of  Dependencies 

superintendence.  The  President,  being  vested  with  the 
executive  power,  was  assumed  to  have  power  to  make  all 
rules  and  regulations  which  were  necessary  and  proper 
in  the  exercise  of  the  power  of  disposition,  and  Congress 
was  limited  in  its  action  to  the  cases  where  there  existed 
a  need  or  emergency  for  interposition.  In  this  respect, 
the  clause  adopted  followed  the  one  proposed  by  the 
Committee  on  Detail. 

Another  reason  why  the  word  "needful,"  seems  to 
have  been  preferred  to  the  word  "necessary"  or  the 
words  "necessary  and  proper  "  was,  in  order  to  particu- 
larize the  acts  of  disposition,  and  to  make  it  certain  that 
the  power  of  disposition  extended  to  the  power  of  making 
different  dispositions  for  the  different  dependent  States 
as  might  be  necessary.  With  the  same  purpose  of  par- 
ticularizing the  acts  of  disposition,  the  word  "respecting" 
was  evidently  preferred  to  the  word  "concerning,"  the 
word  "respecting"  having  the  meaning  of  "concerning 
respectively." 

The  word  "needful"  has  not  only  the  meaning  of 
"necessary"  but  the  meaning  of  "adapted  to  specific 
human  needs."  By  its  use,  therefore,  the  Congress  was 
by  necessary  implication  forbidden  to  assimilate  the  de- 
pendencies to  the  American  Union,  except  so  far  as  the 
local  circumstances  in  each  were  the  same,  and  was 
obliged  to  recognize  each  dependency  as  a  State  entitled 
to  a  regime  adapted  to  the  local  circumstances. 

The  word  "needful"  in  the  sense  of  "adapted  to 
needs"  gave  to  the  words  "rules"  and  "regulations"  the 
same  meaning  as  ordonnances  and  r^glements.  It  may  be 
surmised  that  the  word  "rules"  was  considered  preferable 
to  either  "ordinances"  or  "orders"  or  "laws"  be- 
cause if  the  first  had  been  used,  it  might  have  given  rise 
to  a  claim  that  the  power  of  Congress  over  the  dependen- 
cies was  exactly  that  exercised  by  the  King  of  France,  if 
the  second,  that  it  was  exactly  that  exercised  by  the 


f 


The  Imperial  Power,  1787  461 

King  of  Great  Britain,  and  if  the  third,  that  it  was  ex- 
actly the  same  as  that  claimed  by  Parliament.  While  the 
intention  of  the  framers  of  the  Constitution,  as  shown  by 
the  words  used  in  this  clause,  was  to  model,  in  a  general 
way,  the  power  of  Congress  over  the  dependencies  upon 
the  powers  exercised  in  this  respect  by  the  King  in 
France,  and  the  King  in  Council  in  Great  Britain,  and 
while  the  claim  of  Parliament  to  the  extent  that  it  was 
a  claim  that  the  Parliament  had  the  superintending 
legislative  power  over  the  dependencies  was  admitted, 
it  is  equally  clear  that  it  was  the  intention  that  Congress 
should  not  be  required  to  exactly  follow  the  theory  or 
the  practice  of  either  of  them.  The  King  of  France, 
in  his  disposition  of  the  dependencies  by  "  ordinances 
and  regulations,"  did  not  limit  his  action  to  such  only 
as  was  needful,  but  claimed  the  right  to  paternally 
interfere  even  in  the  details  of  the  internal  life  of  the 
dependencies;  and  the  then  reigning  King  of  Great 
Britain,  in  his  disposition  of  the  British  dependencies  by 
"orders  in  Council"  or  "  regulations  in  Council,"  while 
exercising  a  more  general  control  than  the  French  King, 
had  exercised  his  powers  as  if  he  were  under  no  condi- 
tion or  moral  obligation  to  exercise  them  according  to 
principles  or  according  to  the  advice  of  expert  men. 
The  power  claimed  by  Parliament,  in  the  Declaratory 
Act  of  1766,  of  making  "  laws  and  statutes,"  was  a 
power  without  condition  or  limitation,  or  moral  obliga- 
tion of  any  kind, — a  power  "to  make  laws  and  statutes 
of  sufficient  validity  to  bind  the  dependencies  in  all  cases 
whatsoever." 

The  use  of  the  expression  "  needful  rules  and  regula- 
tions "  made  it  clear  that,  while  the  power  of  the  United 
States  over  the  dependencies  was  to  resemble  the  powers 
exercised  by  the  King  in  France  and  Great  Britain  in 
that  it  was  to  be  a  power  of  disposition,  and  was  to  re- 
semble that  claimed  by  Parliament  in  that  it  was  to  be 


462  The  Administration  of  Dependencies 

exercised  by  the  Chief  Legislature  of  the  Imperial  State,  it 
was  to  differ  from  that  exercised  by  the  King  of  France 
in  being  limited  to  the  necessity  of  each  case  and  not 
paternal,  from  that  exercised  by  the  then  reigning  King  of 
Great  Britain  by  being  exercised  according  to  principles 
determined  by  expert  advisers,  and  from  that  claimed  by 
Parliament  in  being  exercised  with  full  realization  of  the 
condition,  limitation,  and  obligation  attached  to  it  and 
for  the  purpose  of  supervision  or  superintendence. 

The  use  of  the  word  "all"  before  "needful"  made  it 
certain  that  there  was  no  limitation  upon  the  power  of 
the  Union  other  than  that  implied  in  the  word  "need- 
ful." It  thus  made  it  certain  that  the  Union,  in  adminis- 
tering its  dependencies,  was  not  confined  to  any  specific 
sphere  of  action — that,  if  a  proposed  "rule  "  or  "regula- 
tion "  was  plainly  "needful"  in  the  exercise  of  the  dis- 
positive power,  it  was  immaterial  whether  it  interfered 
with  the  "internal  police  "  of  the  dependency  to  which 
it  related,  or  not.  It  also  made  it  impossible  for  any  one 
to  claim  that  the  power  of  the  Union  over  its  depend- 
encies was  limited  in  its  duration.  Madison  had  sug- 
gested a  provision  which  would  have  confined  the  Union 
to  the  power  to  "institute  temporary  Governments  "  for 
certain  dependencies.  The  Convention,  thus  having  be- 
fore them  the  question  whether  all  administration  of  de- 
pendencies by  the  Union  was  to  be  "temporary  " — that 
is,  with  a  view  to  their  ultimate  admission  into  the  Union 
or  their  ultimate  independence,  declared  that  the  power 
of  the  Union  was  without  limit  as  to  time,  and  was  only 
limited  by  the  necessity  of  each  case. 

The  expression  "territory  or  other  property "  was 
equally  complete  and  inclusive  with  the  expression  "to 
make  all  needful  rules  and  regulations  respecting."  It 
has  been  noticed  that,  from  the  time  of  the  Common- 
wealth, the  dependencies  of  Great  Britain,  when  described 
as  forming  with  Great  Britain  the  British  Empire,  were 


The  Imperial  Power,  1787  463 

invariably  divided  into  two  classes.  It  is  true  that  dif- 
ferent names  were  adopted  for  the  two  classes,  but 
duality  in  the  classification  occurred  uniformly.  Scien- 
tific study  has  confirmed  this  duality.  There  are  inevi- 
tably two  classes,  and  only  two  classes,  of  dependencies 
— one  manifestly  destined,  by  nature,  to  be  incorporated, 
at  some  time,  into  the  body  and  personality  of  the  Im- 
perial State,  and  the  other  manifestly  destined  never  to 
be  so  incorporated.  The  word  "territory,"  as  has  been 
already  noticed,  is,  according  to  its  literal  meaning,  the 
word  most  appropriate,  in  the  English  language,  to  de- 
note a  dependent  region  of  the  former  class.  It  means 
a  region  so  near  to  a  State  that  the  State  is  able  without 
difficulty  to  reduce  it,  at  any  time,  to  complete  sub- 
mission— to  terrorize  the  region,  or  act  as  its  Territor. 

The  words  "or  other  property"  were  those  most 
appropriate  to  describe  all  the  regions  external  to  the 
Union  and  subject  to  its  disposition,  which  were  mani- 
festly destined  never  to  be  incorporated  into  its  body  and 
personality.  They,  of  course,  implied  that  "territory 
belonging  to  the  United  States  "  was  "property"  of  "the 
United  States  of  America."  This  at  first  glance  seems 
to  be  a  harsh  and  brutal  statement  of  the  relationship  be- 
tween the  American  Union  and  its  dependencies.  As  a 
matter  of  fact,  though  cold  and  scientific,  it  is  neither 
harsh  nor  brutal.  The  original  basis  of  the  power  of  a 
State  over  any  community  external  to  it  is  that  the  land 
occupied  by  that  community  "belongs  to"  the  State  as 
its  "property,"  and  is  not  a  part  of  its  body.  The  power 
of  a  State  over  external  populations  is  a  power  incidental 
to  and  derived  from  its  power  over  external  lands.  A 
power,  therefore,  "to  dispose  of,  and  make  all  needful 
rules  and  regulations  respecting  territory  or  other  prop- 
erty belonging  to  "  a  State  inevitably  carries  with  it,  as  an 
incident,  power  to  dispose  of  and  make  all  needful  rules 
and  regulations  respecting  the  populations  inhabiting  the 


464  The  Administration  of  Dependencies 

"territory  or  other  property."  Instead  of  being  harsh 
and  brutal,  therefore,  this  statement  in  the  Constitution  is 
exactly  the  reverse.  Instead  of  basing  the  power  of  the 
American  Union  over  external  populations  upon  a  rela- 
tionship assumed  to  exist  between  them  directly,  it  bases 
the  power  upon  a  relationship  assumed  to  exist  indirectly 
— namely,  through  a  paramount  title  to  the  lands  occu- 
pied, vested  in  the  American  Union.  In  other  words, 
the  theory  of  the  Constitution  is,  that  the  inhabitants  of 
the  dependencies  are  not  slaves  of  the  American  Union, 
nor  even  its  wards,  (except  in  certain  cases  where  guar- 
dianship is  necessary),  but  that  they  are  permanent 
tenants  of  land  of  which  the  American  Union  owns  the 
paramount  title  for  public  purposes. 

This  conception  was,  as  has  been  noticed,  nothing 
novel  or  original.  It  runs  through  the  whole  of  the  Eng- 
lish and  American  public  law  from  the  very  inception  of 
the  American  Colonies.  The  power  of  England  over  its 
American  Colonies  was  in  almost  every  case  derived  from 
a  grant  of  the  soil  occupied  by  the  Colonies  to  a  person 
or  persons  in  trust  for  the  Colony.  The  Constitution 
simply  universalized  this  conception,  so  as  to  commit 
the  Union  to  the  theory  that  its  power  over  all  its  de- 
pendencies, whether  arising  from  voluntary  action  on 
the  part  of  a  foreign  State  in  consenting  to  become  de- 
pendent, or  from  the  cession  by  a  foreign  State  of  a  part 
of  its  territory,  or  from  a  grant  of  unoccupied  land  to  a 
colonizing  society,  or  from  conquest,  was  based  upon  its 
ownership  of  the  paramount  title,  for  public  purposes,  of 
the  land  thus  subjected  to  its  disposition. 

The  description  of  the  Imperial  power  as  a  power  "to 
dispose  of  and  make  all  needful  rules  and  regulations  re- 
specting "  the  dependencies,  though  expressly  applied  in 
the  Constitution  to  the  power  exercised  by  the  Union 
through  the  Congress  necessarily  also  qualified  the  power 
exercised  by  the  Union  through  the  President,  since  the 


The  Imperial  Power,  1787  465 

power  of  an  acting  agent  and  the  superintending  agent 
must  necessarily  be  the  same  in  character. 

The  Constitution  not  only  universalized  the  con- 
ception of  the  Imperial  power  and  obligation  of  the 
American  Union  by  imposing  it  upon  the  whole  Gov- 
ernment of  the  Union,  and  by  making  it  clear  that 
the  power  to  be  exercised  over  every  kind  of  dependency, 
whether  arising  by  voluntary  action,  by  colonization,  by 
cession,  or  by  conquest,  was  to  be  a  power  of  dis- 
position, but  it  also  provided  for  an  intermediate 
relationship  between  the  American  Union  and  external 
communities  which  was  neither  a  relationship  of  depend- 
ency nor  an  incorporation  into  its  body.  The  provision 
which  now  appears  in  Article  IV.,  Section  3,  of  the 
Constitution,  and  which  reads,  "New  States  may  be  ad- 
mitted by  the  Congress  into  this  Union," — which  was 
also  drawn  by  Gouverneur  Morris  and  accepted  unani- 
mously by  the  Convention, — was  carefully  framed,  as  the 
debates  show,  in  this  very  general  and  unlimited  form, 
with  the  express  purpose  of  allowing  States  to  be  ad- 
mitted into  the  Union  on  unequal  terms,  in  respect  to 
their  representation  in  Congress  or  in  any  other  respects 
which  the  Congress  might  think  desirable,  as  compared 
with  the  States  originally  in  the  Union.  Such  a  rela- 
tionship of  unequal  union  partakes  both  of  the  nature  of 
incorporation  and  dependence.  It  resembles  incorpora- 
tion, because  the  States  which  are  in  such  a  situation  are 
actually  represented  in  the  Central  Government  of  the 
Union  by  Representatives  in  the  Lower  House  at  least,  and 
they  may  possibly  have  a  Senator  and  may  participate  in 
the  election  of  the  President.  It  resembles  dependence, 
because  the  State  so  unequally  represented,  or  which  is 
taken  into  the  Union  on  terms  which  place  it  on  a  perman- 
ent inequality  as  respects  the  other  States,  is,  to  the  extent 
of  the  inequality,  subject  to  the  legislation  or  disposition 
of  the  other  States  acting  as  the  Imperial  State. 


466  The  Administration  of  Dependencies 

The  Constitution,  therefore,  provided  for  every  possi- 
ble relationship  between  the  American  Union  and  the 
rest  of  the  world.  By  the  treaty-making  power,  vested 
in  the  President  and  Senate,  as  the  Chief  Executive  for 
this  purpose,  the  American  Union  was  recognized  as 
capable  of  entering  into  a  treaty  with  another  State  by 
which  the  latter  should  become  a  protectorate  of  the 
Union,  and  of  entering  into  treaties  by  which  foreign 
States  should  obligate  themselves  not  to  make  conquest 
of  regions  under  the  control  of  the  Union  to  some  ex- 
tent, but  not  yet  effectively  occupied  by  it,  and  thus  es- 
tablish the  "sphere  of  influence  "  of  the  Union  over  those 
regions.  By  the  power  to  admit  new  States  into  the 
Union  on  equal  or  unequal  terms,  vested  in  the  Con- 
gress, the  American  Union  was  authorized  to  incorpo- 
rate any  foreign  or  dependent  State  into  its  body  and 
personality  on  any  terms  it  saw  fit.  By  the  power  of 
disposition  and  regulation  vested  in  the  President  and 
the  Congress,  it  was  authorized  to  allow  every  relation- 
ship known  to  general  public  law  to  exist  between  itself 
and  its  dependent  States  and  between  each  dependent 
State  and  each  and  all  the  others.  In  no  respect  was  the 
Constitution  more  complete  or  more  scientifically  accu- 
rate, universal,  and  inclusive  than  in  the  two  clauses 
which  read:  "New  States  may  be  admitted  by  the  Con- 
gress into  this  Union  "  and  "The  Congress  shall  have 
power  to  dispose  of  and  make  all  needful  rules  and  regu- 
lations respecting  the  territory  or  other  property  belong- 
ing to  the  United  States." 

The  clause  relating  to  the  administration  of  depend- 
encies was  adopted  by  the  Convention  as  an  amendment, 
or  more  exactly,  an  "addition"  to  the  clause  relating 
to  the  admission  of  new  States  into  the  Union.  As  has 
been  already  noticed,  Madison  had  intended  to  have  the 
clause  on  this  subject  inserted  in  the  specification  of  the 
legislative  powers  of  Congress,  and  the  Committee  on 


The  Imperial  Power,  1787  467 

Detail  had  expressed  the  same  intention  in  respect  to  the 
clause  reported  by  them.  The  Committee  on  Style  and 
Arrangement,  of  which  Morris  was  a  member,  considered 
that  the  clause  relating  to  the  administration  of  depend- 
encies had  no  place  in  the  specification  of  the  legislative 
powers  of  Congress — plainly  because  they  recognized  that 
the  power  granted  was  not  legislative  in  its  nature,  and 
that  it  ought  in  some  cases  to  be  exercised  by  the  Con- 
gress and  in  some  cases  by  the  President.  They  there- 
fore left  it  in  the  same  Article  with  the  clause  permitting 
Congress  to  admit  new  States  into  the  Union  on  equal 
or  unequal  terms.  This  was  strictly  logical.  The  power 
to  admit  new  States  into  the  Union  was  not  a  legislative 
power,  but  a  power  to  make  a  contract  or  treaty  with  the 
State  to  be  admitted,  which  should  establish  a  permanent 
relationship  on  express  and  definite  terms  between  the 
parties  to  the  contract.  The  power  to  dispose  of  and  make 
all  needful  rules  and  regulations  was  not  a  legislative 
power,  but  a  power  to  fulfil  an  implied  and  indefinite 
contract  of  trust  or  agency,  by  which  the  State  was  under 
an  obligation  to  perform  services  for  the  benefit  of  another 
State,  in  pursuance  of  a  relationship  existing  between 
them.  These  powers  were  not  to  be  exercised  in  the 
same  way  as  the  ordinary  powers  of  legislation.  The 
power  to  admit  new  States  was  to  be  exercised  by  means 
of  a  proposition  made  by  one  party  and  accepted  by  the 
other ;  the  power  to  dispose  of  the  dependencies  was  to 
be  exercised  by  a  decree,  ordinance,  and  disposition 
made  after  careful  consideration  of  the  principles  ap- 
plicable to  a  statement  of  facts  ascertained  by  an  expert 
investigation. 

Against  one  easily  possible  misconception,  namely, 
that  admission  into  the  Union  was  to  be  the  ulti- 
mate and  expected  goal  of  all  States  dependent  on  the 
Union,  the  Convention  carefully  guarded.  Instead  of 
following    the   usual    form    in    the    Article  relating   to 


468  The  Administration  of  Dependencies 

admission  of  States  into  the  Union,  according  to  which  it 
would  have  read,  "The  Congress  shall  have  power  to  ad- 
mit new  States  into  the  Union,"  this  form  (which  was 
actually  proposed  by  Luther  Martin)  was  rejected  by  the 
Convention  in  favor  of  Morris's  form,  "New  States  may 
be  admitted  by  the  Legislature  into  the  Union,"  from 
which  it  was  made  absolutely  clear  that  the  admission  or 
non-admission  of  States  into  the  Union  was  to  depend 
entirely  upon  the  will  of  the  Union,  and  that  it  did  not 
recognize  any  natural  right  in  any  of  its  dependent  States 
to  be  admitted  into  its  body  and  personality.  This  idea 
was  further  carried  out  by  the  arrangement,  in  the  Con- 
stitution, of  this  clause  and  the  clause  relating  to  the 
administration  of  dependencies  so  that  the  former  pre- 
ceded the  latter, — the  Committee  on  Style  and  Arrange- 
•  ment  following  Morris's  ideas  in  this  respect. 

If  the  order  had  been  reversed,  an  argument  of 
considerable  convincing  force  might  have  been  made, 
that  it  was  the  understanding  of  the  framers  of  the 
Constitution  that  all  dependent  statehood  was  but  a 
mere  stepping-stone  to  admission  of  the  dependent  States 
into  the  Union,  first  on  unequal  and  finally  on  equal 
terms  with  the  original  States.  By  placing  the  clause 
permitting  Congress  to  admit  new  States  into  the  Union 
before  the  clause  relating  to  the  administration  of  de- 
pendencies, it  was  forever  rendered  impossible  to  use  the 
Constitution  itself  as  an  argument  in  favor  of  any  such 
unpractical  and  disastrous  proposition. 

At  the  same  time  that  Morris  was  engaged  in  framing 
these  two  most  important  clauses  of  the  Constitution,  he 
took  upon  himself  to  see  to  it  that  the  expression  "the 
United  States  of  America"  or  "the  United  States," 
wherever  it  occurred  in  the  Constitution,  should  certainly 
have  the  meaning  of  "the  Federal  State  composed  of  the 
States  forming  the  original  Union  and  those  subsequently 
admitted  into  the   Union."      The  moment  the   words 


The  Imperial  Power,  1787  469 

"the  territory  or  other  property  belonging  to  the  United 
States  "  were  inserted  in  the  Constitution,  the  expression 
"the  United  States  "  was  inevitably  confined  to  the  Fed- 
eral State  composed  of  the  States  so  united  and  admit- 
ted, and  the  United  States,  together  with  "the  territory 
or  other  property  belonging  to  "  it,  inevitably  formed  the 
American  Empire.  The  expression  "within  the  limits  of 
the  United  States,"  which  had  been  inserted  by  the 
Committee  on  Detail  in  the  clause  relating  to  the  ad- 
mission of  new  States,  was  omitted  because  the  expres- 
sion "the  United  States"  there  meant  "the  American 
Empire."  Thenceforth  "the  United  States  "  was  under- 
stood to  mean  the  American  Union  and  not  the  American 
Empire.  The  Committee  on  Style  and  Arrangement 
therefore  struck  out  the  words  "of  the  United  States  " 
as  qualifying  the  executive  power,  so  as  to  make  it 
evident  that  the  executive  power  extended  throughout 
the  American  Empire.  They  confined  the  exercise  of 
the  legislative  power  to  the  American  Union  by  limiting 
the  powers  of  Congress  to  the  "legislative  powers  herein 
[in  Article  I.]  granted,"  and  by  inserting  the  specifica- 
tion of  legislative  powers  in  Article  I.  They  also  in- 
serted in  the  specifications  of  powers  relating  to  taxation 
and  to  legislation  concerning  bankruptcy  and  naturaliza- 
tion, which  it  was  desirable  should  be  uniform,  a  pro- 
viso that  such  legislation  should  be  "uniform  throughout 
the  United  States."  Their  evident  purpose  was  thus  to 
prevent  the  "legislative  powers"  of  Congress  from  con- 
flicting with  the  power  "to  dispose  of  and  make  all  need- 
ful rules  and  regulations  respecting"  the  dependencies, 
and  to  keep  the  legislative  power  and  the  Imperial 
power  forever  distinct.  They  left  the  words  "of  the 
United  States"  as  qualifying  the  grant  of  the  judiciary 
power  to  the  Supreme  Court  and  the  "inferior  Courts," 
in  order  to  make  it  certain  that  that  power  was  con- 
fined to  the  American    Union,    and    that   these  Courts 


470  The  Administration  of  Dependencies 

were  to  be  entirely  distinct  from  the  Courts  of  the  Ameri- 
can Empire  and  from  the  local  Courts  of  the  American 
dependent  States. 

It  has  been  supposed  that  the  power  "to  dispose  of  " 
the  dependencies  includes  the  power  to  sell  the  rights  of 
the  American  Union  over  them  to  a  foreign  State.  There 
is,  however,  contemporaneous  evidence  of  the  highest 
character  against  this  construction.  In  the  Convention 
of  the  State  of  Virginia  which  met  on  June  2,  1788,  to 
consider  the  question  of  the  ratification  of  the  Federal 
Constitution,  an  amendment  was  proposed  which  pro- 
vided as  follows : 

• 

No  treaty  ceding,  contracting,  restraining  or  suspending 
the  territorial  rights  or  claims  of  the  United  States,  or  any  of 
them  .  .  .  shall  be  made,  but  in  cases  of  the  most  urgent 
and  extreme  necessity,  nor  shall  any  such  treaty  be  ratified 
without  the  concurrence  of  three-fourths  of  the  whole  number 
of  the  members  of  both  Houses  respectively. 

Governor  Edmund  Randolph,  who,  as  already  noticed, 
had  headed  the  Virginia  delegation  in  the  Convention 
and  presented  the  Virginia  resolutions,  opposed  this  pro- 
posed amendment,  saying : 

Of  all  the  amendments,  this  is  the  most  destructive,  which 
requires  the  consent  of  three-fourths  of  both  Houses  to 
treaties  ceding  or  restraining  territorial  rights.  .  ,  .  There 
is  no  power  in  the  Constitution  to  cede  any  part  of  the  territories 
of  the  United  States.  But  this  amendment  admits,  in  the  fullest 
latitude,  that  Congress  have  a  right  to  dismember  the  Empire. 

It  has  also  been  supposed  that  the  provision  of  Article 
VI.  which  makes  the  Constitution  and  the  laws  of  the 
United  States  made  in  pursuance  thereof  "the  supreme 
law  of  the  land"  has  some  reference  to  the  administra- 


The  Imperial  Power,  1787  471 

tion  of  dependencies.  In  Magna  Charta  the  provision 
in  which  the  expression  "the  law  of  the  land  "  occurs 
reads  as  follows : 

No  free  man  shall  be  taken  or  imprisoned  or  dispossessed  or 
outlawed  or  banished  or  in  any  way  destroyed,  nor  will  we  go 
upon  him,  nor  send  upon  him,  except  by  the  legal  judgment  of 
his  peers  or  by  the  law  of  the  land. 

The  words  "the  law  of  the  land"  here  undoubtedly 
mean  the  law  of  England.  This  provision  of  Article  VI. 
is  almost  verbatim  in  the  words  of  Pinckney's  draft  of 
the  Constitution,  with  the  single  exception  that  the 
words  "the  Constitution  of  the  United  States"  are 
added.  In  that  draft,  the  Congress  was  given  no  power 
whatever  in  the  administration  of  dependencies,  and  yet 
all  Acts  made  by  the  Legislature  of  the  United  States 
pursuant  to  the  Constitution  were  declared  to  be  "the 
supreme  law  of  the  land."  The  Constitution  and  laws  of 
the  United  States  are  the  supreme  law  of  the  land  in  the 
American  Union ;  they  are  only  the  basis  of  the  supreme 
law  of  the  land  in  the  dependencies  of  the  American 
Union,  because  these  dependencies  are  under  an  un- 
written Constitution  based  on  the  Constitution  and  laws 
of  the  United  States. 

That  the  clause  presented  by  Gouverneur  Morris  relat- 
ing to  the  administration  of  dependencies  should  have 
been  accepted  so  promptly  by  the  Convention  was  not 
surprising.  By  his  action  in  conducting  the  negotiations 
between  the  Congress  and  the  British  Government  in 
1778,  followed  by  his  masterly  statement,  in  his  Observa- 
tions on  the  American  Revolution,  of  the  whole  position 
taken  by  the  American  Colonies  in  their  contest  with 
Great  Britain,  he  had  made  himself  the  leading  authority 
in  America  upon  all  Imperial  questions.  In  crowding 
into  one  short  sentence  a  complete  description   of   the 


47^  The  Administration  of  Dependencies 

Imperial  power  and  obligation,  as  America  claimed  it  to 
be,  he  had  but  fulfilled  what  the  Convention  had  expected 
of  him.  Evidently  they  recognized  instantly  that  there 
was  no  room  for  debate  or  criticism — that  the  clause  was 
complete  and  perfect  in  itself. 

From  the  exercise  of  power  subject  to  the  Imperial 
obligation,  the  District  of  Columbia  was  excepted.  In 
that  dependency,  Congress  was  given  power  "to  exercise 
exclusive  legislation  in  all  cases  whatsoever,"  and  this 
specification  of  power  was  placed  in  the  list  of  specifica- 
tions of  the  "legislative  powers"  of  Congress.  Within 
the  District  of  Columbia,  the  Congress  has  exactly  the 
same  powers  as  were  claimed  by  the  British  Parliament 
over  the  American  Colonies  by  the  Declaratory  Act  of 
1766, — a  power  "to  make  laws  and  statutes  of  sufficient 
force  and  validity  to  bind  [the  District]  and  its  inhabi- 
tants in  all  cases  whatsoever."  The  District  of  Columbia 
has  no  inherent  right  of  statehood.  The  political  rights 
are  only  such  as  Congress  shall  grant  of  its  mere  will,  as 
a  "privilege"  or  "indulgence."  This  is  necessary,  in 
order  that  Congress  and  the  President  may  be  free  from 
local  influence.  The  very  fact  that  the  two  kinds  of 
power  are  so  separated  and  distinguished  in  the  Consti- 
tution serves  to  show  the  great  distinction  between  the 
powers  themselves.  The  power  to  "legislate"  for  the 
District  of  Columbia  is  the  Magisterial  power  to  command 
and  govern  :  the  power  to  "dispose  of  and  make  all  need- 
ful rules  and  regulations  respecting  "  the  other  dependen- 
cies is  the  Imperial  power  to  administer  and  govern. 

It  will  be  remembered  that  Grotius,  in  the  passage 
which  has  been  already  quoted,  said : 

It  is  well  worth  our  observation  that  what  the  Latins  ex- 
press by  the  word  imperare,  to  command,  the  Greeks  more 
modestly  express  by  the  word  taffffeiv^  to  dispose  or  set  in 
order. 


The  Imperial  Power,  1787  473 

The  British  had  expressed  the  Imperial  power  in  the 
same  way  as  had  the  Latins.  The  Americans  repudiated 
this  definition  of  the  Imperial  power,  but  did  not  fall  into 
the  mistake  into  which  the  Greeks  had  fallen.  The  too 
great  haughtiness  of  the  Romans  had  resulted  in  a  loss 
of  power  through  excessive  centralization.  The  too 
great  modesty  of  the  Greeks  had  resulted  in  an  entire 
absence  of  power  because  of  the  lack  of  centralization. 
The  Americans  chose  the  middle  ground.  That  which 
the  Romans  called  the  power  to  command  and  which  the 
Greeks  called  the  power  to  dispose  or  set  in  order,  the 
Americans  called  the  power  to  dispose  or  set  in  order 
and  to  command  accordingly. 


CHAPTER   XXIV 

EUROPEAN  ADMINISTRATION,    1787-I902 

JUST  at  the  moment  that  the  Constitution  of  the 
United  States  was  being  framed,  France  entered 
upon  a  period  of  experimentation  in  the  matter  of 
the  administration  of  its  dependencies.  Louis  XVI.,  in 
March,  1787,  granted  to  the  Provinces  of  France  the 
right  to  elect  local  Parlements,  with  restricted  and  pro- 
visional powers  of  legislation;  and  in  June,  1787,  he 
granted  the  same  right  to  the  French  Colonies  in  the 
West  Indies.  The  consequence  was  that  when  the  Revo- 
lution broke  out,  these  Colonies  demanded  representation 
in  the  General  Assembly  of  France,  taking  the  ground 
that,  as  the  principles  of  liberty,  equality,  and  frater- 
nity were  universal,  France  and  its  dependencies  consti- 
tuted a  Unitary  State,  and  that  the  dependencies  could 
not  be  excluded  from  proportionate  representation  in  the 
General  Assembly.  On  July  4,  1789,  deputies  elected 
by  the  Colonial  Legislature  of  San  Domingo  presented 
themselves  in  the  Assembly  and  demanded  the  full  rights 
of  deputies  from  the  domestic  Provinces.  After  a  long 
debate,  their  demand  was  granted.  On  October  14,  in 
the  same  year,  deputies  from  Martinique  made  a  similar 
demand,  and  were  admitted,  and  their  example  was  fol- 
lowed July  7,  1790,  by  deputies  from  Guadaloupe,  with 
the  same  result.  In  March  and  April,  1790,  the  General 
Assembly  took  up  the  colonial  question  and  resolved  that : 

While  this  Assembly  considers  the  Colonies  as  a  part  of  the 
French  Empire  and  desires  to  grant  them  the  enjoyment  of  the 

474 


European  Administration,  1 787-1 902    475 

fruits  of  the  happy  regeneration  which  is  now  going  on,  it  has 
never  intended  to  include  them  in  the  Constitution  which  it 
has  decreed  for  the  Realm,  and  to  subject  them  to  laws 
which  might  be  incompatible  with  their  local  and  particular 
requirements  and  customs. 

The  General  Assembly,  therefore,  authorized  the  Colo- 
nies, through  their  deputies,  "to  make  known  their  wishes 
in  regard  to  the  Constitution,  the  legislation,  and  the  ad- 
ministration which  would  be  best  adapted  to  their  needs," 
and  permitted  them  to  elect  Local  Assemblies  whose 
powers  should  be  on  this  basis  of  relationship.  A  Colo- 
nial Committee  of  twelve  members  was  named,  charged 
with  drawing  up  a  plan  for  a  Constitution  which  should 
serve  as  a  model  for  all  the  Colonial  Constitutions,  but 
which  should  be  merely  for  the  guidance  of  the  Colonial 
Assemblies,  they  having  full  permission  either  to  use  it 
only  in  part  or  not  to  use  it  at  all,  as  they  saw  fit.  The 
committee  reported  a  guide-plan  as  directed,  and  by 
order  of  the  Constituent  Assembly  it  was  sent  to  the 
Colonies  on  June  15,  1791. 

Meantime,  in  May,  1791,  political  rights  as  citizens 
had  been  granted  by  the  Constituent  Assembly  to  free 
negroes,  and  the  negroes  in  the  West  Indian  Colonies  had 
become  excited  by  the  prospect  of  freedom  held  out  to 
them  by  the  speeches  of  the  Revolutionary  radicals  and 
by  the  actions  and  publications  of  the  French  Society 
for  the  Abolition  of  Slavery.  Before  the  permission  had 
arrived  from  France  to  form  Colonial  Assemblies  on  the 
new  basis,  they  had  been  formed  by  the  white  popula- 
tions, in  the  interest  of  the  whites;  and  an  organization 
was  immediately  formed  among  the  white  populations  to 
start  a  reactionary  movement  which  would  make  the 
Colonies  independent  of  France  and  thus  prevent  the 
abolition  of  slavery,  on  which  institution  they  felt 
the  prosperity  of  both  the  white  and  the  black  population 


47^  The  Administration  of  Dependencies 

depended.  By  the  time  the  too  liberal  terms  of  rela- 
tionship offered  by  the  French  National  Assembly  were 
transmitted  to  the  West  Indian  Colonies,  these  Colonies 
were  not  only  in  a  state  of  organized  rebellion  against 
France,  but  in  a  state  of  civil  war  between  the  whites  and 
the  negroes. 

In  the  Constitution  of  September,  1791,  it  was  pro- 
vided that: 

The  Colonies  and  French  possessions  of  Asia,  Africa,  and 
America,  although  they  form  a  part  of  the  French  Empire,  are 
not  comprised  in  the  present  Constitution. 

This  Constitution  fixed  the  number  of  representatives 
at  745,  "independently  of  those  which  may  be  allowed 
to  the  Colonies."  To  the  General  Assembly  of  France 
was  reserved  the  decision  of  questions  relative  "to  the 
exterior  regime  of  the  Colonies,  to  the  organization  of  the 
courts,  to  the  defence  of  French  interests,  and  to  the  carry- 
ing out  of  engagements  between  the  French  traders  and 
planters  and  the  natives  " — all  other  matters  being  left 
to  be  finally  determined  by  the  Colonies  themselves. 

The  abolition  of  slavery  throughout  France  and  all  its 
dependencies  by  vote  of  the  Convention,  in  1794,  re- 
moved the  last  obstacle  to  the  universal  application  of 
the  principle  of  equality  between  individuals,  and  ac- 
cordingly, in  order  both  to  make  the  application  of  the 
principle  universal  and  to  put  an  end  to  all  the  hopes  of 
the  planters  that  a  separation  of  the  Colonies  from  France 
might  be  brought  about,  the  political  organism  composed 
of  France  and  its  dependencies  was  declared  to  be  a 
Unitary  State  by  the  Convention,  in  the  Constitution 
of  1795,  in  the  following  language: 

The  French  Colonies  are  integral  parts  of  the  Republic  and 
are  subject  to  the  same  constitutional  law.  .  .  .  They 
shall  be  divided  into  Ddpartements. 


European  Administration,  1787- 1902    477 

All  laws  enacted  under  this  Constitution  were  to  be 
ipso  facto  applicable,  without  distinction,  to  the  Colonies 
then  belonging  to  France.  Some  Colonies,  theretofore 
separate,  were  united  so  as  to  form  a  s\ng\&  D^partement ; 
but  San  Domingo,  where  the  race  war  between  the  whites 
and  the  blacks  was  raging  most  fiercely,  and  where  the 
local  organization  was  most  complete,  was  divided  into 
several  D^partements. 

In  1798,  by  statute,  this  principle  of  uniformity  was 
extended  so  as  to  assimilate  the  colonial  D^partements 
to  the  domestic  Dipartements  in  all  matters  of  finance 
and  taxation,  and  the  system  of  elective  judges  and  jury 
trial  in  force  in  France  was  extended  to  the  Colonies. 

During  this  period  of  uniformity  and  assimilation,  the 
Colonies  were  proportionally  represented  in  the  Assem- 
blies of  France. 

Speaking  of  the  effect  of  this  policy,  M.  Arthur  Girault, 
in  his  work,  Les  Principes  de  Colonisation  et  de  Legislation 
Coloniale,  published  in  1895,  says: 

In  spite  of  this,  the  Colonies  made  lively  opposition  to  all 
the  measures  which  the  Assemblies  adopted  in  relation  to 
them.  They  accepted  the  advantages  of  assimilation,  but  they 
,were  unwilling  to  submit  to  its  burdens,  being  of  a  mind  to 
govern  themselves.  ...  In  fact,  moreover,  our  Colonies, 
altogether  too  far  distant  for  the  Revolutionary  Government  to 
be  able  to  make  its  will  respected  among  them,  passed  through 
a  period  of  trouble  and  confusion.  Some,  like  Martinique, 
were  in  the  hands  of  the  English.  San  Domingo  was  devas- 
tated by  a  frightful  civil  war.  Toussaint  I'Ouverture  and 
Victor  Hugues  did  as  they  pleased  there.  In  the  Colony  of 
Reunion,  the  Colonial  Assembly  governed  the  island  accord- 
ing to  its  whim.     It  was  anarchy. 

With  the  consulate  of  Napoleon  came  the  reaction 
against  the  Revolutionary  sentiments,  and  the  political 


478    The  Administration  of  Dependencies 

organism  composed  of  France  and  its  dependencies  was 
again  recognized  as  an  Empire.  The  Constitution  of 
i8cx)  provided  that: 

The  regime  of  the  French  Colonies  shall  be  determined  by 
special  laws. 

Two  years  later,  the  Legislature  delegated  to  Napoleon 
its  power  over  the  Colonies  for  ten  years  by  an  Act  which 
provided  that : 

All  previous  laws  to  the  contrary  notwithstanding,  the  regime 
of  the  Colonies  is  submitted,  for  ten  years,  to  the  regulations 
which  shall  be  made  by  the  Government, 

The  moral  obligation  of  France  to  exercise  its  functions 
towards  these  dependencies  in  an  expert  manner,  and  the 
federal  nature  of  the  Empire  composed  of  France  and  its 
dependencies,  was  immediately  recognized  by  Napoleon, 
by  the  establishment  of  a  Colonial  Council  at  Paris,  com- 
posed in  part  of  persons  appointed  by  the  French  Gov- 
ernment and  in  part  by  persons  elected  by  the  appointed 
Legislatures  of  the  dependencies.  France  was  convinced, 
for  all  time,  that  popular  government  of  aggregations  of 
communities  was  limited  to  those  which  are  contiguous 
and  homogeneous,  and  from  that  time  forward  never  de- 
parted from  the  proposition  that  the  dependencies  were 
entitled  to  a  special  and  particular  administration  differ- 
ing from  that  of  France. 

The  Constitution  of  1 8 14  provided  that :  * '  The  Colonies 
shall  be  ruled  by  particular  laws  or  regulations" — the 
word  laws  {lois)  referring  to  the  action  of  the  Parliament, 
and  the  word  regulations  {rdglements)  to  the  action  of  the 
Executive.  The  administration  of  the  dependencies, 
under  this  Constitution,  drifted  inevitably  into  the  hands 
of  the  Executive,  and  during  the  period  from  18 14  to 


European  Administration,  1787- 1902    479 

1830,  a  great  number  of  careful  and  scientific  regulations 
for  the  Colonies  were  made  by  royal  ordinances.  In 
1830,  the  jealousy  felt  by  the  Legislature  of  the  Execu- 
tive, due  to  the  claims  of  arbitrary  power  in  France  made 
by  Louis  XVIII.  and  Charles  X.,  led  to  a  return  to 
administration  of  the  dependencies  by  the  French 
Parliament.  In  the  Constitution  of  1830,  the  words 
"and  regulations"  were  omitted,  so  that  the  provision 
read:  "The  Colonies  shall  be  governed  by  particular 
laws." 

By  the  Constitution  of  1848,  it  was  provided: 

The  territory  of  Algeria  and  the  Colonies  is  declared  French 
territory,  and  shall  be  ruled  by  particular  laws  until  a  special 
law  places  it  under  the  regime  of  the  present  Constitution. 

In  the  Constitution  of  1852,  the  provision  was:  "The 
Senate  shall  rule  the  Constitution  of  Algeria  and  the 
Colonies  by  s/natus-consu/ies  " — that  is,  by  action  taken 
by  the  Senate  alone  as  a  deliberative  and  legislative  body. 

The  constitutional  laws  of  France  which  since  1875 
have  formed  its  Constitution  do  not  specifically  cover  the 
case  of  the  dependencies,  and  the  shiatus-consultes  made 
under  the  provisions  of  the  Constitution  of  1852  are  still 
considered  to  be  in  force,  though  not  to  the  extent  of 
preventing  the  operation  of  the  general  rule  that  a  law 
of  Parliament  controls  every  other  law  or  regulation. 

The  Colonies  of  France  remained  under  the  direction 
of  the  Minister  for  the  Marine  until  1881.  In  that  year, 
the  administration  of  the  Colonies  was  committed  to  the 
Minister  for  Commerce,  and  placed  in  the  special  charge 
of  an  Under-Secretary  for  the  Colonies.  A  little  later, 
the  administration  was  again  attached  to  the  Ministry  for 
the  Marine;  later  it  was  again  attached  to  the  Minis- 
try for  Commerce;  and  still  later  was  again  attached 
to  the  Ministry  for  the  Marine.  Meanwhile  the  business 
of  the  administration  of  the  Colonies  had  fallen  under  the 


480  The  Administration  of  Dependencies 

charge  of  a  permanent  Under-Secretary,  and  had  become 
independent  of  both  the  Ministry  for  the  Marine  and 
the  Ministry  for  Commerce.  On  March  20,  1894,  by  a 
law  of  the  French  Parliament,  the  administration  of  the 
French  dependencies  was  placed  in  the  charge  of  a  Min- 
ister for  the  Colonies.  This  action  was  taken  with  great 
deliberation,  and  after  a  very  careful  examination  of  the 
whole  subject  by  the  members  of  the  House  and  Senate 
familiar  with  the  requirements  of  colonial  administration. 
Neither  Algeria,  Tunis,  Madagascar,  nor  the  protectorates 
of  Indo-China  were  included  within  the  jurisdiction  of  the 
Minister  for  the  Colonies.  Algeria  was  placed  within  the 
jurisdiction  of  the  Minister  for  the  Interior,  and  Tunis, 
Madagascar,  and  the  protectorates  of  Indo-China  within 
the  jurisdiction  of  the  Minister  for  Foreign  Affairs. 

In  the  year  1883,  while  the  administration  of  the 
French  Colonies  was  in  the  hands  of  the  Minister  for  the 
Marine,  there  was  established,  by  decree  of  the  President, 
an  Imperial  Council,  attached  to  the  Under-Secretary  for 
the  Colonies,  called  Le  Conseil  Sup&ieur  des  Colonies,  com- 
posed of  persons  expert  in  colonial  administration,  whose 
duties  were  to  advise  the  Under-Secretary.  This  Council 
was  remodelled  in  1890,  as  the  result  of  the  action  of  the 
French  National  Colonial  Congress,  held  at  Paris  in  De- 
cember, 1889,  and  February,  1890,  which  arose  out  of  the 
International  Colonial  Congress  held  in  August,  1889,  in 
connection  with  the  Universal  Exposition.  The  action 
of  the  Congress  was  expressed  by  the  following  resolution : 

The  Congress — considering  that  the  representation  in  the 
National  Parliament  of  some  of  the  Colonies  requires,  as  a 
logical  correlative,  the  establishment,  for  the  benefit  of  the 
Colonies  not  represented,  of  a  special  system  of  consultation; 
considering,  also,  that  the  former  regimes  applied  to  the  Colo- 
nies gave  to  them  the  necessary  guaranties  in  this  respect, 
either  by  the  institution  of  Local  Legislatures  invested  with 


European  Administration,  1 787-1902    481 

power  to  manage  their  purely  internal  affairs,  or  by  the  organi- 
zation in  the  Imperial  State  of  Councils-General,  in, which  the 
decisions  of  the  Government  might  be  debated  before  being 
put  in  force  in  these  countries — express  the  opinion  that  an 
organic  law  should  be  enacted,  instituting,  in  connection  with 
the  administration  of  the  Colonies,  a  Superior  Council  of  the 
Colonies,  composed  as  follows: — etc. 

In  accordance  with  this  resolution,  the  Superior  Council 
for  the  Colonies  as  remodelled  by  decree  of  the  Presi- 
dent, was  composed  of  the  Senators  and  Deputies  of  the 
Colonies  represented  in  the  French  Parliament,  delegates 
from  the  other  Colonies,  seventeen  barristers  having  spe- 
cial knowledge  of  administrative  law,  persons  nominated 
by  the  French  Government  because  of  their  expert  know- 
ledge of  colonial  affairs  and  administration,  delegates  from 
the  Chambers  of  Commerce  of  the  principal  French  cities, 
and  delegates  from  societies  formed  for  the  study  of  co- 
lonial and  geographical  questions.  When  the  office  of 
Minister  for  the  Colonies  was  established  in  1894,  this 
Council  was  continued  and  was  attached  to  this  Ministry. 

M.  Boulanger,  the  first  Minister  for  the  Colonies,  in  a 
report  to  the  President  of  the  Republic,  of  May  5,  1894, 
speaking  of  the  functions  of  France,  as  the  Imperial  State, 
towards  its  dependencies,  said  : 

In  establishing  a  Ministry  for  the  Colonies,  the  Parliament 
has  recognized  the  necessity  of  making  certain  important 
modifications  in  the  workings  of  the  Central  Administration, 
in  order  that  it  may  fulfil  the  heavy  task  imposed  upon  it  by 
the  extension  of  our  Colonial  domain. 

The  principal  divisions  of  this  Ministry  ought  to  be  so  con- 
stituted as  to  accomplish  the  following  results: 

In  the  first  place,  it  is  necessary  to  assure  to  our  possessions 
an  administration  which  is  actuated  by  the  highest  sentiments 
of  order,  of  justice,  and  of  scrupulous  equity,  which  shall  give 
to  persons  who  immigrate  into  the  Colonies  and  to  the  natives 

31 


482    The  Administration  of  Dependencies 

a  knowledge  and  understanding  of  their  rights  and  a  respect 
for  their  duties,  which  shall  let  it  be  known  to  all  the  world 
that  France,  however  far  distant,  proposes  to  exercise  upon  its 
Colonies  its  moral  and  civilizing  influence.  It  is  important 
that  the  administration  should  be  decentralized  enough  not  to 
interfere  with  the  initiative  of  the  Colonies  and  to  prevent 
their  free  development,  but  it  is  necessary  that  it  should  con- 
serve the  sovereign  authority  necessary  to  safeguard  the  gen- 
eral interests  of  the  whole  political  organism  composed  of 
France  and  its  dependencies  {les  inUrets  gin^raux  du  pays),  to 
protect,  whenever  necessary,  our  foreign  possessions  against 
their  own  weakness,  and  to  maintain  at  every  point  on  the 
earth's  surface  where  the  French  flag  floats  the  unity  of  pur- 
pose indispensable  to  the  prosperity  of  the  Colonies. 

In  the  second  place,  the  administration  ought  to  have  for 
its  object  the  procuring  for  our  different  possessions  the  en- 
joyment of  institutions  suitable  to  the  nature  of  each,  of  coun- 
tenancing and  supervising  the  exploitation  of  their  natural 
resources,  and  of  placing  and  keeping  their  relations  with  the 
Imperial  State  upon  a  just,  coherent  and  orderly  basis. 

It  was  obviously  implied  in  this  statement  that  the 
"sovereign  authority"  of  France  over  its  dependencies 
was  not  unconditional  and  unlimited,  but  only  such  a 
power  as  was  "necessary"  to  safeguard  the  general  in- 
terests of  the  Empire,  to  protect  the  respective  depend- 
encies from  their  own  inherent  weaknesses,  and  to 
maintain  a  unity  of  purpose  throughout  the  whole  politi- 
cal organism  composed  of  France  and  its  dependencies. 

Some  of  the  recent  French  writers  on  the  administra- 
tion of  dependencies  admit  only  two  possible  views  of  the 
power  of  a  State  over  its  dependencies — the  first,  that  it 
is  the  same  as  its  power  over  the  integral  parts  of  the 
State;  and  the  second  that  it  is  the  same  as  that  exer- 
cised by  the  State  in  or  for  an  independent  State,  under 
a  treaty  with  that  State.  In  either  view,  the  condition 
of  dependence  is  a  temporary  one,  and  for  the  purpose 


European  Administration,  1 787-1 902    483 

of  preparing  the  dependency  either  for  complete  inde- 
pendence or  for  complete  incorporation  into  the  body  and 
personality  of  the  State.  These  two  conceptions  of  the 
power  of  the  State  are  the  only  ones  admitted  by  Pro- 
fessor Edouard  Petit,  in  his  monumental  work  entitled 
Organisation  des  Colonies  Franqaises  et  des  Pays  de  Pro- 
tectorat,  published  in  1895.  Other  writers,  notably  M. 
Arthur  Girault,  in  his  essay  entitled  "Theorie  Gen^rale  de 
la  Colonisation,"  printed  as  a  preface  to  his  Principes  de 
Colonisation  et  de  Legislation  Coloniale,  published  in  1895, 
admit  a  third  conception,  namely,  that  the  power  of  the 
State  is  a  power  over  the  individual  inhabitants  of  the 
dependencies,  who,  if  not  of  French  origin  or  entitled  to 
rights  by  treaty,  have  no  political  rights  as  against  France 
and  only  the  fundamental  civil  rights.  A  State  which  is 
devoted  to  the  first  conception  of  its  powers  is  said  to 
be  devoted  to  the  policy  of  assimilation  {l' assimilation) \ 
one  devoted  to  the  second  conception  is  said  to  have  the 
policy  of  autonomy  (/ ' autonomie) ;  and  one  devoted  to  the 
third,  the  policy  of  assubjectization  [I' assujetissement). 

M.  Girault  is  of  the  opinion  that  none  of  the  three 
conceptions  is  exactly  correct,  and  that,  while  the  general 
principle  of  the  second  is  correct,  the  true  conception  is 
arrived  at  by  combining  all  three  conceptions.  He  thus 
closes  his  essay : 

This  policy  [of  assimilation],  of  the  principle  of  which  we 
approve,  must  be  both  moderated  and  eclectic — by  "moder- 
ated "  I  mean  disengaged  from  certain  unfortunate  exaggera- 
tions, and  carefully  distinguished  from  a  uniformity  contrary 
to  the  nature  of  things,  and  by  "eclectic,"  borrowing  from 
the  two  other  systems  what  is  good  in  them,  namely,  the  unity 
of  authority  from  the  principle  of  assubjectization,  and  ex- 
tended local  liberties  and  wide  decentralization  from  the 
principle  of  autonomy. 

It  is  an  interesting   fact  that  the  recognition  of  the 


484  The  Administration  of  Dependencies 

Imperial  power  as  a  power  of  assubjectization  by  writers  on 
French  colonial  policy  was  due  to  the  representations 
made  by  the  delegates  from  Holland  to  the  International 
Colonial  Congress  of  1889.  Devoted  as  is  the  State  of 
Holland  to  the  principle  of  individual  liberty  and  of 
statehood  for  all  communities  destined  by  nature  for  a 
distinct  existence,  it  has  adopted,  in  the  management  of 
tropical  dependencies,  the  principle  that  its  power  is  a 
power  of  assubjectization.  The  States-General  fix  by  an 
organic  law  the  Constitutions  of  the  dependencies  and 
establish  by  statute  the  most  important  rules  and  regula- 
tions. Details  of  the  administration  are  provided  for  by 
the  decrees  of  the  Queen  or  by  resolutions  {arrSt^s)  of  the 
local  Governor-General,  who  acts  after  advising  with  an 
Executive  Council  of  experts.  The  inhabitants  of  the 
dependencies  are  not  consulted,  and  no  question  of  allow- 
ing them  representatives  in  the  States-General  has  ever 
been  raised. 

In  1895,  the  French  Government  made  a  statement  of 
its  views  on  the  subject  of  the  relations  of  France  to  its 
dependencies  which  went  far  beyond  the  views  of  any  of 
the  writers  on  the  subject.  This  statement  was  made  in 
support  of  a  project  of  law  proposed  by  the  French  Cabinet 
to  the  Parliament  for  an  Act  to  be  passed  declaring  Mada- 
gascar, which  was  then  in  the  military  occupation  of 
France  (it  having  been  previously  a  half-sovereign  State 
under  protection  of  France  by  treaty,  and  a  revolt  having 
occurred  which  France  had  suppressed),  to  be  annexed  to 
France  as  a  French  Colony.  It  was  objected  that  annexa- 
tion would  imply  that  the  French  Constitution  and  laws 
were  in  force  in  Madagascar  exactly  as  they  were  in  France. 

In  opposition  to  this,  the  Minister  for  the  Colonies 
made  a  statement  before  the  Committee  of  the  Chamber 
of  Deputies  in  which  he  said: 

The  project  of  law  presented  by  the  Government  does  not 


European  Administration,  1 787-1902    485 

carry  with  it,  as  a  necessary  consequence,  any  modification  in 
the  administration  of  the  country  or  require  the  immediate 
application  of  French  legislation  in  its  entirety  to  the  different 
tribes  which  are  scattered  over  the  vast  territory  of  the  island. 

In  other  words,  the  expression,  "French  Colony,"  as  ap- 
plied to  Madagascar  does  not  necessarily  imply  the  creation 
of  a  complicated  administration,  because  it  is  possible  to  ad- 
minister and  organize  our  new  Colony  by  utilizing  the  assist- 
ance of  the  local  authorities  and  institutions,  .  .  .  This 
measure  is  not  such  as  amounts  to  substituting,  ipso  facto,  the 
institutions  of  the  Imperial  State  for  those  of  the  dependent 
country,  because  the  well-defined  policy  of  the  Government  is 
toward  a  progressive  amelioration  in  the  legislation  of  the 
natives,  by  borrowing  {empruntant)  from  our  own  legislation, 
in  proportion  to  the  needs  and  according  to  the  circumstances, 
whatever  it  contains  which  is  applicable  to  populations  of 
different  races,  which  are  for  the  most  part  very  far  removed 
as  yet  from  our  ideas  of  civilization. 

The  law  in  project,  from  an  international  point  of  view, 
annuls  the  personality  of  the  Madagascan  State,  which  will 
disappear  as  a  juridical  entity,  and  become  a  dependency  of 
the  French  sovereignty;  but  it  cannot  have  the  effect  to  annihi- 
ate  the  personal  status  of  the  natives,  who  cannot  reasonably 
be  subjected,  without  a  period  of  transition,  to  the  exigencies 
of  our  "civil  life,"  nor  can  it  abrogate  the  local  laws  or 
usages. 

The  report  of  the  Committee,  after  quoting,  as  above, 
the  words  as  of  the  Minister  for  the  Colonies,  proceeded 
as  follows : 

It  is  wrong  to  confound  annexation  and  assimilation.  An- 
nexation is  the  act  of  incorporating,  whether  by  cession,  con- 
quest, or  purchase,  new  territory  into  the  national  domain; 
giving  to  it,  or  leaving  to  it  the  government  which  best  suits 
its  needs.  Assimilation  is  a  form  of  administration  in  all  re- 
spects conforming  to  that  of  the  Imperial  State.  This  latter 
method   of   administration,   which   is   applicable   only   when 


486  The  Administration  of  Dependencies 

populations  of  the  same  origin,  which  have  arrived  at  the 
same  degree  of  civilization,  are  concerned,  would  not  be  at  all 
suited  to  natives  having  different  manners  and  customs. 

This  statement  came  very  near  to  recognizing  that  the 
French  dependencies  have  an  inherent  right  of  statehood. 
The  French  Government,  in  making  the  statement,  neces- 
sarily denied  that  by  annexation  of  territory  the  Consti- 
tution and  lavi^s  of  France  become  the  Constitution  and 
laws  of  the  annexed  territory.  They  admitted  that  the 
"legislation  of  the  natives"  continued  after  annexation, 
and  that  French  legislation,  in  so  far  as  it  operated  as 
legislation  within  the  dependency,  operated  by  a  process 
of  "borrowing," — the  borrowing  extending  only  to  such 
parts  as  were  "applicable,"  considering  the  local  "needs" 
and  "circumstances"  of  the  dependency.  It  seems  not 
too  much  to  say  that  this  statement,  followed  as  it  was 
by  the  passage  by  Parliament,  in  1896,  of  the  Act  pro- 
jected, committed  France  to  the  proposition  that  its 
power  over  its  dependencies  is  a  power  distinct  and 
different  from  its  power  as  exercised  within  the  State  of 
France,  and  conditioned  and  limited  so  as  to  be  properly 
described  as  a  power  of  disposition. 

The  proposition  that  the  dependencies  of  France  are 
subject  only  to  a  conditional  and  limited  power  of  the 
State  of  France  is  but  a  natural  extension  of  the  French 
theory  concerning  the  nature  of  all  governmental  power. 
According  to  the  French  view,  all  governmental  power  ex- 
cept that  exercised  by  an  elected  representative  Assembly 
is  regarded  as  the  result  of  a  previous  expert  investigation 
and  adjudication.  The  acts  of  the  President  of  the  Re- 
public are  called  decrees  {d^crets).  The  regulations  made 
by  a  Minister  for  the  purpose  of  carrying  into  effect  the 
laws  of  Parliament  or  the  decrees  of  the  President  are 
called  arrithy  while  the  judgment  of  a  court  is  called 
arrit — both  words  containing  the  idea  of  adjudication 


European  Administration,  1 787-1 902    487 

and  decision.  The  tendency,  throughout  all  administra- 
tion emanating  from  or  affected  by  French  ideas,  to  re- 
gard all  administrative  functions  as  having  a  judicial 
aspect  is  well  known.  The  institution,  known  as  the 
Council  of  State,  which  exists  in  France  as  a  court  of 
last  resort  in  all  cases  involving  the  application  of  the 
public  law  to  the  individual  and  as  an  advisory  council 
for  the  Parliament  and  the  President,  unconnected  with 
the  Ministry  except  as  the  Ministry  follows  its  advice 
given  on  matters  referred  to  it,  is  but  an  evidence  of  the 
French  theory  which  has  survived  from  the  earliest  times. 

The  establishment  of  the  Colonial  School  in  Paris  by 
decree  of  the  President,  of  November  23,  1889,  was  a 
recognition  of  the  Imperial  power  as  a  power  of  disposi- 
tion. This  school,  which  is  attached  to  the  Ministry  for 
the  Colonies  and  administered  by  a  Council  named  by  the 
Minister  for  the  Colonies,  is  an  institution  partly  public 
and  partly  private,  being  supported  in  part  by  grants  made 
by  France  and  by  the  Colonies,  in  part  by  private  dona- 
tions and  legacies,  and  in  part  by  tuition  charges.  It  is 
open  both  to  young  men  from  the  Colonies  and  from 
France.  The  purpose  is  to  fit  the  inhabitants  of  the 
French  dependencies  for  their  own  government,  and  to 
fit  the  French  Government  to  most  expertly  perform  its 
functions  as  the  Imperial  Government,  by  training  up 
young  men  to  perform  these  different  functions. 

Though  Algeria  is  a  dependency  so  near  to  France 
that  its  ultimate  incorporation  into  France  might  under 
some  circumstances  be  practicable,  yet  the  great  differ- 
ence between  the  native  population  and  the  French 
renders  it  extremely  improbable  that  such  incorporation 
can  ever  occur.  Since  1870,  it  has  been  represented  in 
the  French  Parliament  on  the  basis  of  the  French  popu- 
lation of  Algeria, — that  is,  on  unequal  terms  as  compared 
with  the  D^partements  of  France. 

Since  1866,  the  Colonies  of  Reunion,  Martinique,  and 


488  The  Administration  of  Dependencies 

Guadaloupe  have  each  been  represented  in  the  Chamber 
of  Deputies  of  France  by  two  Deputies  and  in  the  Senate 
by  a  Senator.  French  India  has  one  Deputy  and  one 
Senator,  and  Senegal,  Guiana,  and  Cochin  China  have 
each  a  Deputy. 

In  spite  of  this  representation,  however,  all  legislation 
of  the  French  Parliament  is  not  ipso  facto  in  force  in  the 
dependencies.  If  Parliament  by  express  words  extends 
a  law  to  some  or  all  the  dependencies,  it  is  in  force  ac- 
cordingly. As  respects  native-born  Frenchmen  residing 
in  the  dependencies,  all  laws  of  France  protecting  the  per- 
son and  property  are  regarded  as  being  in  force  ipso  facto. 

While  France  allows  to  some  of  its  dependencies  a  very 
considerable  autonomy,  — even  permitting  some  of  them, 
under  its  supervision,  to  regulate  their  own  tariffs,  and 
.while  it  respects  the  privilege  of  Colonial  Assemblies  to 
grant  taxes,  yet  every  act  of  the  dependencies  is  under 
the  supervision  and  control  of  the  French  Government. 
In  theory,  the  dependencies  are  yet  only  "prolongations 
of  the  soil  "  of  France,  to  use  the  expression  of  M. 
Girault.  Napoleon's  epigram,  "  Lh  oil  est  le  drapeau,  Ih 
est  la  France,'  is  taken  as  an  axiom,  while  at  the  same 
time  the  march  of  events  is  contradicting  it.  The  admin- 
istration of  Tunis,  since  1881,  as  a  protectorate  of  France 
under  such  conditions  that  it  may  perhaps  be  called  a 
"constitutional  protectorate,"  though  having  the  form 
of  an  "international  protectorate,"  is  an  illustration  of 
the  advantage  to  be  derived  from  treating  dependencies 
as  entitled  to  inherent  rights  of  statehood,  and  preserv- 
ing, to  the  utmost  degree  consistent  with  the  general  in- 
terests, the  local  habits  and  customs.  The  same  system 
of  constitutional  protectorate  has  been  applied  by  France 
in  the  management  of  some  of  its  African  and  East  Indian 
possessions  which  it  was  necessary  to  isolate. 

It  thus  appears  that  the  present  tendency  in  France  is 
towards  the  solution  of  the  problem  of  the  administration 


European  Administration,  1 787-1902    489 

of  dependencies  by  a  compromise  between  popular  and 
expert  government,  according  to  which  the  right  of  rep- 
resentation is  extended  to  even  very  remote  depend- 
encies, while  at  the  same  time  the  dependencies  so 
represented  are  actually  given  an  expert  administration 
through  an  Imperial  Department. 

At  the  same  time,  there  undoubtedly  exists  an  oppos- 
ing tendency  which  makes  for  a  more  and  more  complete 
differentiation  of  the  dependencies  from  the  Imperial 
State.  Even  in  the  case  of  Algeria,  the  policy  of  assimi- 
lation which  prevailed  unquestioned  from  i860  to  1885 
is  now  regarded  as  a  general  plan,  not  likely,  in  the  im- 
mediate future,  to  result  in  the  incorporation  of  Algeria 
into  the  body  and  personality  of  France — or,  to  use  the 
words  of  M.  J.-C.  Paul  Rougier,  in  his  Precis  de  Legis- 
lation et  d' Economie  Coloniale,  published  in  1895,  "a 
plan  indicative  of  the  end  to  be  obtained  and  to  which 
we  shall  attain  only  after  centuries  spent  in  changing 
the  character  and  transforming  the  moral  conscience  of 
the  Mussulman  society."  The  recent  statements  of  the 
French  Government  seem  also  to  indicate  a  trend  of 
thought  which,  if  carried  to  its  logical  outcome,  can  only 
result  in  the  conception  of  the  French  Empire  as  a 
federal  organism. 


Germany,  like  the  United  States,  began  its  experience 
as  an  Imperial  State  by  being  obliged  to  control  an  adja- 
cent population  which  was  not  capable  of  immediate 
assimilation  but  which  was  manifestly  destined  to  incor- 
porated into  the  body  and  personality  of  Germany.  The 
acquisition  of  Alsace-Lorraine,  as  the  result  of  the  Franco- 
German  War,  in  1871,  raised  a  problem  which,  in  its 
general  features,  resembled  the  problem  which  the  United 
States  worked  out  by  the  Ordinance   of    1787    for   the 


490  The  Administration  of  Dependencies 

government  of  the  Northwest  Territory.  The  reasons 
why  the  populations  of  the  adjacent  regions  could  not  be 
immediately  assimilated  were  entirely  different,  but  the 
fact  of  this  impracticability  was  the  same  in  both  cases. 

In  passing,  it  may  be  noticed  that  the  description  of 
the  political  organism  composed  of  the  German  States, 
as  "the  German  Empire,"  was  a  recognition  of  the  prin- 
ciple underlying  the  description  of  a  State  and  its  de- 
pendencies as  a  Federal  Empire — it  being  an  organism 
composed  of  States,  of  which  Prussia  was  the  Imperial 
State  for  some  purposes. 

Some  German  and  Swiss  writers,  following  the  classifi- 
cation originally  suggested  by  Dr.  J.-G.  Bluntschli,  in  his 
Geschichte  des  Schweitzerischen  Bundesrechts,  published 
between  1848  and  1859,  regard  Germany  as  a  Federal  Em- 
pire {Bundesreich).  Dr.  Edward  A.  Freeman,  in  his  essay 
entitled  "  Bases  of  National  Unity,"  printed  in  a  volume 
of  essays  entitled  Britannic  Confederation,  edited  by  Mr. 
A.  S.  White,  published  in  1892,  also  took  this  view.  His 
words  were  : 

The  position  ...  of  the  State  of  Prussia  quite  cuts  off 
[Germany]  from  being  reckoned  as  a  real  Federation.  If 
anything,  it  is  rather  a  Federal  Empire,  an  Empire  in  the 
shape  of  a  Federation. 

By  "Federation,"  in  this  extract,  is  really  meant,  as  the 
context  shows,  "Federal  State." 

Germany,  however,  differs  from  a  true  Federal  Empire 
in  having  a  representative  Central  Government,  and 
therefore  most  writers  classify  it  as  a  Federal  State. 
M.  Louis  LeFur,  in  his  Etat  F^d^ral  et  Conf^difration 
d'Etats,  published  in  1896,  takes  this  view,  and  intimates 
that  the  term  Federal  Empire  is  only  properly  applicable 
to  "a  State  formed  by  the  union  of  a  Sovereign  State  and 
one  or  more  dependent  States." 


European  Administration,  1787- 1902    491 

Upon  the  acquisition  of  Alsace-Lorraine,  the  German 
Government,  recognizing  it  as  a  dependency  destined 
for  ultimate  incorporation  into  the  body  and  personality 
of  Germany  as  a  State  of  the  Union,  but  not  capable 
of  immediate  incorporation  because  of  the  hostility  of  the 
inhabitants  and  their  devotion  to  French  customs  and 
traditions,  gave  to  the  region  of  Alsace-Lorraine  the 
name  and  description  of  Reichsla7td,  "the  land  of  the 
Empire"  or  "land  belonging  to  the  Empire,"  distinguish- 
ing it  from  the  Schutzgebiete,  "the  foreign  protected 
dominions."  Both  Houses  of  the  German  Parliament 
withdrew  from  all  active  participation  in  the  administra- 
tion in  behalf  of  Germany,  by  uniting  in  the  enactment 
of  a  law  of  June  9,  1871,  which  provided  that  the  politi- 
cal power  should  be  exercised  in  Alsace-Lorraine  by  the 
Emperor.  By  the  Constitution  of  Germany,  the  Em- 
peror exercises  all  political  power  "in  the  name  of  the 
Empire" — that  is,  in  the  name  of  the  State  of  Germany. 
The  Imperial  Chancellor,  who  is  the  immediate  official 
adviser  of  the  Emperor,  became  the  Minister  for  the 
administration  of  the  relations  between  Germany  and 
Alsace-Lorraine,  it  being  recognized  that  the  charge  of 
the  administration  of  the  region  could  not  properly  be 
given  to  any  of  the  Executive  Departments.  A  Local 
Government  was  established  in  Alsace-Lorraine  in  which 
the  people  of  that  region  had  some  participation.  On 
December  30,  1871,  by  Act  of  Parliament,  a  Governor, 
with  full  powers  of  internal  administration,  and  an  elec- 
tive Council  to  assist  him,  were  provided.  On  July  4, 
1879,  the  local  administrative  power  over  Alsace-Lorraine 
was,  by  Act  of  Parliament,  taken  away  from  the  Imperial 
Chancellor  and  vested  in  the  Governor  assisted  by  his 
Council,  and  the  Governor  was  made  directly  responsible 
to  the  Emperor.  As  the  Emperor,  in  administering  the 
affairs  of  Alsace-Lorraine,  acts  as  the  representative 
of  the  State   of    Germany,    the   action   of   the   German 


492  The  Administration  of  Dependejicies 

Parliament,  in  placing  the  local  administration  of  Alsace- 
Lorraine  in  the  charge  of  a  Governor  appointed  by  the 
State  of  Germany,  assisted  by  an  elected  Council,  was 
a  recognition  of  the  dependent  statehood  of  Alsace- 
Lorraine,  and  of  a  federal  relationship  between  it  and 
Germany. 

Between  1871  and  1873,  there  was  much  discussion  in 
Germany  concerning  the  relation  of  the  Constitution  of 
the  State  of  Germany  to  the  administration  of  Alsace- 
Lorraine.  On  June  25,  1873,  a  law  was  passed  by  the 
German  Parliament  providing  that  the  Constitution  of 
Germany  should  be  in  force  in  Alsace-Lorraine  on  and 
after  January  i,  1874.  Alsace-Lorraine  was  not,  how- 
ever, allowed  to  be  represented  in  the  German  Parliament. 

Professor  Paul  Laband,  in  the  last  (French)  edition  of 
his  Das  Staatsrecht  des  Deutscheti  Retches,  now  in  course 
of  publication,  speaking  of  the  present  situation  in  Alsace- 
Lorraine,  arising  out  of  the  putting  in  force  of  the  Con- 
stitution in  Alsace-Lorraine  by  the  Act  of  1873,  admits 
that  it  is  very  difficult  to  understand  exactly  what  effect 
this  action  had.     He  says: 

By  the  laws  of  May  2,  1877,  and  July  4,  1879,  the  provisions 
of  the  law  of  June  25,  1873,  were  completed  and  modified,  with 
the  result  that  the  principles  which  govern  the  exercise  of  the 
governmental  power  in  Alsace-Lorraine  are  actually  very 
complicated. 

Since  the  putting  in  force  of  the  Constitution  in  Alsace- 
Lorraine,  the  German  Parliament  has,  in  general,  exer- 
cised the  same  powers  as  it  exercises  over  the  States  of 
Germany,  but  it  has  not  hesitated  to  exercise  such  other 
powers  of  supervision  and  control  as  it  has  thought 
necessary. 

In  Germany,  as  in  France,  the  theory  prevails  that 
all  the  rights   of   the  German  dependencies  arise  from 


European  Administration,  1 787-1902    493 

the  mere  will  and  grant  of  Germany,  as  the  Imperial 
State.  Thus,  Professor  Laband  says  of  the  relationship 
of  Alsace-Lorraine  to  Germany: 

Alsace-Lorraine  is  not  a  monarchy,  because  it  has  no  per- 
sonal Sovereign;  nor,  on  the  other  hand,  is  it  a  republic,  be- 
cause the  people  of  Alsace-Lorraine  are  not  the  depositaries 
of  the  political  power.  It  is  an  integral  part  or  province 
of  Germany.  The  depositary  of  power  in  Alsace-Lorraine  is 
Germany,  that  is  to  say,  the  body  of  States  united  to  form 
Germany,  in  their  theoretical  unity,  in  their  political  per- 
sonality. 

The  Constitution  of  Germany  recognizes  the  class  of 
dependencies  manifestly  destined,  by  reason  of  their  re- 
moteness in  distance  and  civilization,  never  to  be  incorpor- 
ated into  the  State  of  Germany  under  the  name  of 
Schutzgebiete — ' '  foreign  protected  dominions. ' '  Such  de- 
pendencies are,  by  the  Constitution,  placed  in  the  immedi- 
ate control  of  the  Emperor,  who  by  its  terms  exercises 
"the  protective  power  "  over  them.  The  administration 
of  the  foreign  protected  dominions  is  in  charge  of  the 
Imperial  Chancellor,  in  his  capacity  as  Secretary  of  State 
for  Foreign  Affairs,  there  being  in  the  Ministry  for 
Foreign  Affairs  a  special  division  devoted  to  this  branch 
of  administration.  Nearly  all  the  foreign  protected  do- 
minions consist  of  tropical  or  semi-tropical  lands  and 
populations,  and  the  original  occupation  by  Germany  of 
these  regions  has  usually  arisen  out  of  the  occupation 
of  merchants,  followed  by  the  occupation  of  colonizing 
and  exploiting  companies.  These  companies  have,  in 
most  cases,  surrendered  to  Germany  the  governmental 
powers  which  they  have  assumed  or  obtained  by  conquest 
or  treaty  from  the  natives.  Professor  Laband  calls  the 
Schutsgcbiete  "protectorates  under  the  general  public 
law,"  as  distinguished  from  "protectorates  under  the  in- 
ternational law." 


494    The  Administration  of  Dependencies 

Almost  simultaiieously  with  the  reorganization  of  the 
Colonial  Council  in  France  (on  October  lo,  1890),  there 
was  created,  by  a  decree  of  the  Imperial  Chancellor,  an 
advisory  Council  of  experts,  attached  to  the  division  of 
the  Foreign  Office  having  charge  of  the  administration 
of  the  foreign  protected  dominions.  This  Council  is  com- 
posed of  an  undesignated  number  of  persons  having  special 
knowledge  and  experience  in  colonial  administration, 
named  by  the  Imperial  Chancellor,  together  with  repre- 
sentatives of  those  colonizing  and  exploiting  companies 
which  are  formally  under  the  protection  of  Germany 
through  letters  of  protection  issued  to  them  by  the  Em- 
peror, or  which  are  engaged  in  operations  of  importance 
without  formal  protection. 

By  Act  of  Parliament  of  March  30,  1892,  the  budget  of 
each  foreign  protected  dominion  is  required  to  be  kept 
separate  from  the  budget  of  Germany,  and  from  that  of 
Alsace-Lorraine,  and  from  those  of  the  other  foreign 
protected  dominions,  so  that  the  tax  and  revenue  laws 
of  each  dependency  are  adjusted  to  its  own  budget. 
Thus  in  this  most  important  respect  of  financial  isola- 
tion, the  statehood  of  the  German  dependencies  is  pre- 
served. 

Professor  Laband,  speaking  of  the  relation  of  the 
foreign  protected  dominions  to  Germany,  says: 

The  Schutzgebiete  are  not  foreign  territory  as  respects  Ger- 
many ;  they  belong  to  Germany.  .  .  .  They  are  not  incor- 
porated into  Germany;  they  do  not  form  part  of  that  portion 
of  the  earth's  surface  which  constitutes  the  material  basis  of 
the  political  personality  of  Germany;  they  are  not  elements, 
but  dependencies  of  the  territory  of  Germany. 

It  is  proper  to  say  that  the  territories  of  the  Schutzgebiete 
are  "foreign  "  when  one  is  speaking  of  the  force  and  applica- 
tion of  the  laws  of  Germany,  of  the  jurisdiction  of  officers, 


European  Administration,  1787- 1902    495 

and  of  the  effect  of  administrative  acts  and  decisions,  for  in 
this  sense  the  word  "foreign  "  is  not  used  to  describe  that 
which  is  subjected  to  a  foreign  political  power,  but  to  describe 
territory  other  than  that  which  the  Constitution  has  set  apart 
in  order  to  make  of  it  a  juridical  unity. 

The  most  recent  German  writer  on  general  public  law, 
Dr.  Georg  Jellinek,  in  his  book  entitled  Das  Recht  des 
Modernen  Staates^  published  in  1900,  recognizes  the  dis- 
tinction between  dependencies  destined  for  incorporation 
into  the  Imperial  State  and  those  destined  never  to  be  so 
incorporated,  by  dividing  all  dependencies  into  two  great 
divisions,  one  of  which  he  calls  landals  integrirend  Staats- 
glied, —  "land  as  an  integral  part  of  the  State," — and 
the  other  nebenland.  He  describes  land  ah  integrirend 
Staatsglied  {w\\\c\\,  it  is  at  once  evident,  corresponds  to 
the  Reichsland  of  Germany  and  the  "Territories"  of 
America)  as  follows : 

A  region  of  this  kind  is,  in  greater  or  less  degree,  subordi- 
nated to  the  State  and  is  organized  with  reference  to  the  ex- 
clusive interest  of  the  State,  as  a  province,  whose  participation 
in  the  corresponding  life  of  the  State  is  limited. 

Dr.  Jellinek  thus  describes  the  nebenland : 

To  a  region  of  this  kind,  from  its  nature,  there  pertains  a 
separate  political  existence,  so  that  it  can  have  no  participation 
in  the  life  of  the  dominant  State.  This  is  the  case  with  all 
Schutzgebiete  and  Colonies,  to  which  no  participation  in  the 
Parliamentary  deliberations  of  the  collective  State  is  allowed; 
whose  administration  shows  a  wide  differentiation  from  that 
of  the  State,  so  that  they  appear,  not  as  integral  and  constituent 
parts,  but  rather  as  mere  connected  parts  of  the  State;  and 
wltich,  for  this  reason,  without  coming  into  contact  with  its 
inner  life,  may  be  almost  entirely  separated  from  it. 

The  possibility  of  regarding  dependencies  as  States  in  a 


49^  The  Administration  of  Dependencies 

federal  relationship  with  the  Imperial  State  has  not 
escaped  the  attention  of  the  German  scholars,  but  they 
unanimously  oppose  such  a  conception  as  applied  to  the 
Schutzgebietc.  Professor  Georg  Meyer,  in  his  Die  Staats- 
rechtliche  Stellung  der  Deutschen  Schutzgebiete,  published 
in  1888,  denied  their  statehood,  and  he  was  supported  in 
this  position  by  Professor  Carl  von  Stengel  in  his  Die 
Deutschen  Schutzgebiete,  ihre  rechtliche  Stellung,  Verfas- 
sung  und  Verwaltung,  published  in  1895,  and  by  Laband 
and  Jellinek. 

It  thus  appears  that  though,  in  Germany,  as  in  France, 
the  dependencies  are  regarded  as  deriving  their  political 
existence  and  rights  from  the  will  and  grant  of  Germany, 
they  are  nevertheless  being  treated  more  and  more  ex- 
actly as  they  would  be  if  they  were  considered  to  have 
inherent  rights  of  statehood — in  other  words,  that,  al- 
though the  German  Empire  (meaning  by  this  term  Ger- 
many and  its  dependencies,  and  not  the  State  of  Europe 
which  calls  itself  "the  German  Empire"),  is  in  theory 
a  unitary  organism,  it  is  in  practice  a  federal  organ- 
ism. Even  the  tropical  dependencies,  whose  populations 
are  wholly  without  the  ability  to  govern  themselves  ex- 
cept, in  some  cases,  under  a  tribal  form,  are  treated  as 
States,  and  the  State  of  Germany  recognizes  its  right  and 
its  duty  to  isolate  these  States  economically,  and  to  some 
extent  socially,  from  German  contact  and  influence,  and 
to  hold  the  administrators  of  these  dependencies  to  the 
most  stringent  obligation  to  account,  as  a  Substituted  and 
Trustee  Government  for  the  people  of  these  States,  to  the 
State  of  Germany  concerning  their  trusteeship. 

Summarizing  the  results  of  this  investigation  of  the 
theory  and  practice  of  the  States  of  continental  Europe, 
it  appears  that  the  conception  of  the  dependencies  of  a 
State  as  themselves  States  is  steadily  forcing  its  way 
from  the  very  necessity  of  the  case,  since  experience 
has  proved  that  only  upon  this  basis  can  dependencies 


European  Administration,  1 787-1 902    497 

be  successfully  administered.  As  the  theory  is  yet  in 
process  of  formation,  no  consideration  has  been  given  to 
the  very  important  corollaries  which  would  flow  from  its 
acceptance, — such  as,  for  instance,  the  corollaries  that  the 
Imperial  power  is  a  trust  arising  out  of  an  implied  con- 
tract between  the  Imperial  State  and  the  dependent 
States,  which  rests  upon  the  Legislature  and  the  Ex- 
ecutive of  the  Imperial  State  alike;  and  that  therefore 
the  Federal  Empire  composed  of  a  State  and  its  depend- 
encies is  subject  to  an  unwritten  Constitution  distinct 
from  the  Constitution  of  the  Imperial  State. 


CHAPTER  XXV 

BRITISH   ADMINISTRATION,   I780-I902 

IN  1780,  Burke  introduced  a  Bill  in  Parliament  for  re- 
ducing the  expenses  of  the  Civil  List,  which  pro- 
vided for  the  abolition  of  the  office  of  Secretary  of 
State  for  the  Colonies  and  of  the  Board  of  Commissioners 
for  Trade  and  Plantations,  as  unnecessary  and  useless.  As 
Great  Britain  had  insisted,  not  only  at  the  inception  of 
the  American  Revolution,  but  even  in  1778,  after  the  war 
had  been  going  on  for  three  years,  that  its  dependencies 
were  mere  counties  of  the  Realm,  and  its  Parliament  the 
Supreme  Legislature  which  "granted  "  to  the  depend- 
encies the  "privilege  "  or  "indulgence  "  of  "self-govern- 
ment," there  was  no  more  need  for  a  Secretary  of  State 
for  the  Colonies  or  for  a  Board  of  Commissioners  for 
Trade  and  Plantations,  which  was,  in  effect,  an  Under- 
Secretarial  Board,  than  there  was  for  a  Secretary  of  State 
and  an  Under-Secretary  of  State  for  the  County  of  Dur- 
ham. The  King  yielded  and  himself  abolished  the  two 
offices  attacked  by  Burke.  By  an  Act  passed  in  1782, 
the  offices  were  formally  abolished. 

Burke,  though  insisting  upon  the  unconditional  and 
unlimited  power  of  Great  Britain  over  the  dependencies, 
was  a  great  believer,  as  has  already  been  noticed,  in 
granting  "privileges"  or  "indulgences"  to  them.  By  his 
influence,  in  1782,  the  "privilege"  or  "indulgence"  of 
entire  exemption  from  Parliamentary  control  was  granted 
to  Ireland,  by  the  repeal  of  the  Act  of  1720  "for  the  bet- 
ter securing  of  the  dependency  of  Ireland  upon  the  Crown 
of  Great  Britain,"  in  which  it  had  been  declared: 

498 


British  Administration,  1780-1902    499 

That  the  said  Kingdom  of  Ireland  hath  been,  is,  and  of 
right  ought  to  be  subordinate  unto  and  dependent  upon  the 
Imperial  Crown  of  Great  Britain,  as  being  inseparably  united 
and  annexed  thereunto;  and  that  the  King's  Majesty,  by  and 
with  the  advice  and  consent  of  the  Lords  Spiritual  and  Tem- 
poral, and  Commons  of  Great  Britain,  in  Parliament  assem- 
bled, had,  hath,  and  of  right  ought  to  have  full  power  and 
authority  to  make  laws  and  statutes  of  sufficient  force  and 
validity  to  bind  the  Kingdom  and  people  of  Ireland. 

Two  years  later,  in  1783,  when  the  Irish  objected  to 
cases  going  on  appeal  from  the  highest  courts  of  Ireland 
to  the  Judicial  Committee  of  the  Privy  Council,  the  Par- 
liament settled  this  matter  by  granting  Ireland  the 
"privilege  "  and  "indulgence  "  of  entire  exemption  from 
this  appellate  jurisdiction,  in  an  Act  which  provided: 

That  the  right  claimed  by  the  people  of  Ireland  to  be  bound 
only  by  laws  enacted  by  his  Majesty  and  the  Parliament  of  that 
Kingdom  in  all  cases  whatever,  and  to  have  all  actions  and 
suits  at  law  or  in  equity,  which  may  be  instituted  in  that  King- 
dom, decided  by  his  Majesty's  courts  therein  finally,  and 
without  appeal  from  thence,  shall  be,  and  it  is  hereby  declared 
to  be,  established  and  ascertained  forever,  and  shall  at  no 
time  hereafter  be  questioned  or  questionable. 

The  Irish  people,  instead  of  arguing  from  this  action 
of  Parliament  that  Great  Britain  and  Ireland  constituted 
a  Federal  Empire,  of  which  Great  Britain  was  the  Sover- 
eign State  for  which  the  King  acted,  argued  that  Ireland 
was  a  State  independent  of  Great  Britain,  though  the 
same  person  was  King  of  both  States.  If  the  King  of 
Great  Britain  was  merely  the  King  of  Ireland,  it  neces- 
sarily followed  that  when  a  Regent  had  to  be  named, 
Ireland  might  name  him  as  well  as  Great  Britain,  and  if 
they  could  not  agree,  Ireland  might  name  its  own  King 
and  become  entirely  independent.      This  was  actually 


500    The  Administration  of  Dependencies 

attempted  in  1788,  At  the  time  the  Constitution  of  the 
United  States  was  being  framed,  Ireland,  released  from 
Parliamentary  control,  was  in  a  state  of  anarchy  and  was 
a  menace  to  the  peace  and  safety  of  Great  Britain  ;  and  it 
was  evident  that  the  Act  of  1782  had  been  a  serious  mis- 
take. It  seems  probable  that  the  failure  of  this  experi- 
ment had  much  to  do  with  the  practically  unanimous 
sentiment  which  seems  to  have  prevailed  in  America  in 
1787  that  the  Northwest  Territory  could  not  safely  be 
exempted  from  the  control  of  Congress. 

In  1782,  when  Burke's  Act  was  passed,  there  was  no 
regularly  organized  Committee  of  the  Privy  Council 
for  Trade  and  Plantations.  The  administration  of  the 
British  dependencies,  therefore,  rested  with  the  King 
and  the  Parliament  (except  where,  as  in  the  case  of  Ire- 
land, the  Parliament  had  voluntarily  withdrawn),  acting 
through  the  Secretary  of  State  for  the  Southern  Depart- 
ment, who  then  began  to  be  recognized  as  the  Secretary 
of  State  for  Home  Affairs.  Until  1786,  the  immediate 
charge  of  the  administration  of  the  dependencies  was 
vested  in  a  Bureau  or  Division  of  the  Home  Oflfice, 
known  as  "the  Plantations  Branch  of  the  Home  Office." 
The  Committee  of  the  Privy  Council  for  Trade  and 
Plantations  was  revived  in  1784,  and  in  1786  the  busi- 
ness of  the  Plantations  Branch  of  the  Home  Office  was 
transferred  to  this  Committee. 

Under  this  arrangement,  the  Committee  of  the  Privy 
Council  for  Trade  and  Plantations  was,  in  effect,  the 
Secretarial  Board  for  Imperial  Affairs.  The  Secretary  of 
State  for  the  Southern  Department  was  also  Secretary  for 
Imperial  Affairs.  There  were  therefore  two  Secretaries 
of  State  having  the  same  functions,  acting  under  an 
arrangement  which  did  not  expressly  subordinate  either 
of  them  to  the  other.  It  was  inevitable  that  one  should 
supplant  the  other.  The  Committee  of  the  Privy  Coun- 
cil for  Trade  and  Plantations,  being  less  effective  than 


British  Administration,  1780- 1902     501 

the  single  Secretary,  gradually  dropped  into  desuetude, 
and  by  the  year  1800  had  practically  ceased  to  have  any 
connection  with  the  administration  of  the  dependencies. 

In  1794,  it  evidently  being  realized  that  the  business 
of  the  administration  of  the  dependencies  had  no  proper 
connection  with  the  administration  of  the  Home  Affairs 
of  Great  Britain,  the  administration  of  the  dependencies 
was  placed  in  the  charge  of  the  War  Department,  and 
the  Secretary  of  State  for  War  became  nominally  the 
Secretary  of  State  for  the  Colonies. 

The  policy  of  legislative  independence  for  Ireland, 
initiated  by  Great  Britain  in  1782  during  the  Radical  re- 
action, which  had  resulted  in  nothing  but  anarchy  for 
Ireland,  was  brought  to  a  close  by  the  Union  between 
Great  Britain  and  Ireland  which  was  consummated 
August   2,    1800. 

By  Pitt's  Act,  in  1791,  Canada  was  divided  into  two 
Provinces — Lower  Canada  being  set  apart  so  as  to  in- 
clude the  French  settlements,  and  Upper  Canada  so 
as  to  include  the  regions  into  which  there  was  English 
immigration.  Each  Province  was  given  a  Lower  House 
which  was  elective,  and  the  form  of  government  in  each 
was  assimilated  as  nearly  as  possible  to  that  of  the  British 
Government.  The  French  population,  however,  did  not 
wish  to  be  assimilated,  but  insisted  on  retaining  their  own 
habits  and  customs,  and  a  bitter  feeling  arose  between 
the  two  populations.  The  French  majority  in  Lower 
Canada,  unused  to  expressing  themselves  through  a 
popular  Assembly,  soon  fell  under  the  influence  of  social- 
istic leaders. 

The  crisis  was  reached  between  the  years  1835  and 
1840.  The  Radicals  in  Lower  Canada  demanded  a 
Colonial  Executive  dependent  for  its  tenure  of  office  on 
the  vote  of  the  popular  branch  of  the  Colonial  Assembly. 
This  was,  in  effect,  a  demand  that  Lower  Canada  should 
be    recognized    as    an    independent    State,    having    no 


502  The  Administration  of  Dependencies 

connection  with  Great  Britain  except  by  treaty.  It  was 
substantially  the  same  as  the  demand  of  the  anti- 
Imperiah'st  party  in  the  American  Colonies  just  prior 
to  the  Revolution. 

Warned  by  its  experience  with  the  American  Colonies, 
and  acting  under  the  advice  of  Lord  Durham,  who  was 
sent  out  under  a  commission  by  which  he  was  appointed 
not  only  Governor  of  Lower  Canada,  but  also  "High 
Commissioner  for  the  adjustment  of  certain  important 
questions  depending  in  the  Provinces  of  Lower  and 
Upper  Canada  respecting  the  form  and  future  govern- 
ment of  said  Provinces,"  Great  Britain  adopted  the 
principle  of  "responsible  government"  for  both  Upper 
and  Lower  Canada.  Lord  Durham  thus  described  the 
characteristics  of  "responsible  government  "  in  his  Report 
on  the  Affairs  of  British  America,  published  in  1839: 

The  responsibility  to  the  Colonial  Legislature  of  all  officers 
of  the  Government,  except  the  Governor  and  his  Secretary, 
should  be  secured  by  every  means  known  to  the  British  Con- 
stitution. The  Governor,  as  the  representative  of  the  Crown, 
should  be  instructed  that  he  must  carry  on  his  government  by 
Heads  of  Departments  in  whom  the  Colonial  Legislature  shall 
repose  confidence;  and  that  he  must  look  for  no  support  from 
home  in  any  contest  with  the  Legislature,  except  on  points 
involving  strictly  Imperial  interests, 

I  would  not  impair  a  single  prerogative  of  the  Crown ;  on 
the  contrary,  I  believe  that  the  interests  of  the  people  of  these 
Colonies  require  the  protection  of  prerogatives  which  have  not 
hitherto  been  exercised.  But  the  Crown  must  on  the  other 
hand  submit  to  the  necessary  consequence  of  representative 
institutions;  and  if  it  has  to  carry  on  the  government  in  uni- 
son with  a  representative  body,  it  must  consent  to  carry  it  on 
by  means  of  those  in  whom  that  representative  body  has 
confidence. 


British  Administration,  1 780-1 902     503 

Perfectly  aware  of  the  value  of  our  colonial  possessions  and 
strongly  impressed  with  the  necessity  of  maintaining  our  con- 
nection with  them,  I  know  not  in  what  respect  it  can  be  de- 
sirable that  we  should  interfere  with  their  internal  legislation 
in  matters  which  do  not  affect  their  relations  with  the  Mother 
Country.  The  matters  which  so  concern  us  are  very  few. 
The  constitution  of  the  form  of  government, — the  regulation 
of  foreign  relations,  and  of  trade  with  the  Mother  Country, 
the  other  British  Colonies,  and  foreign  nations, — and  the  dis- 
posal of  the  public  lands,  are  the  only  points  on  which  the 
Mother  Country  requires  a  control.  This  control  is  now 
sufficiently  secured  by  the  authority  of  the  Imperial  Legis- 
lature; by  the  protection  which  the  Colony  derives  from  us 
against  foreign  enemies;  by  the  beneficial  terms  which  our 
laws  secure  to  its  trade;  and  by  its  share  of  the  reciprocal 
benefits  which  would  be  conferred  by  a  wise  system  of  coloni- 
zation. 

In  accordance  with  Lord  Durham's  suggestion,  Upper 
and  Lower  Canada  were  united  under  a  single  legislative 
Assembly,  and  this  Assembly,  on  September  3,  1841, 
adopted  the  following  resolutions,  which  are  interesting 
as  containing  a  definition  of  "responsible  government" 
from  the  point  of  view  of  the  population  of  a  highly  in- 
telligent British  dependency: 

That  the  Head  of  the  Executive  Government  being,  within 
the  limits  of  his  Government,  the  representative  of  the  Sover- 
eign, is  responsible  to  the  Imperial  authority  alone;  but  that, 
nevertheless,  the  managen  ent  of  our  local  affairs  can  only  be 
conducted  by  him,  by  and  with  the  assistance,  counsel,  and 
information  of  subordinate  officers  in  the  Province. 

That  in  order  to  preserve,  between  the  different  branches 
of  the  Provincial  Parliament,  that  harmony  which  is  essential 
to  the  peace,  welfare,  and  good  government  of  the  Province, 
the  chief  advisers  of  the  representative  of  the  Sovereign,  con- 
stituting a  Provincial  Administration  under  him,  ought  to  be 


504  The  Administration  of  Dependencies 

men  possessed  of  the  confidence  of  the  representatives  of  the 
people;  thus  affording  a  guarantee  that  the  well-understood 
wishes  and  interests  of  the  people,  which  our  gracious  Sover- 
eign has  declared  shall  be  the  rule  of  the  Provincial  Govern- 
ment, will,  on  all  occasions,  be  faithfully  represented  and 
advocated. 

That  the  people  of  the  Province  have,  moreover,  a  right  to 
expect  from  such  Provincial  Administration  the  exertion  of 
their  best  endeavors  that  the  Imperial  authority,  within  its 
constitutional  limits,  shall  be  exercised  in  the  manner  most 
consistent  with  their  well-understood  wishes  and  interests. 


According  to  this  statement,  the  purpose  of "  responsible 
government  "  is  to  "guarantee  that  the  well-understood 
wishes  and  interests  of  the  people  [of  the  dependency] 
will,  on  all  occasions,  be  faithfully  represented  and 
advocated  "  before  the  tribunal  representing  the  Imperial 
State,  in  order  that  it  may  make  a  disposition  concerning 
them.  "The  well-understood  wishes  and  interests"  of 
the  people  of  the  dependency  are,  according  to  this 
statement,  to  be  regarded  as  "the  rule  of  the  Provincial 
Government,"  and  a  denial  of  these  wishes  and  interests 
is  to  occur  only  as  an  exception  and  for  good  cause. 
The  "responsibility"  of  the  Imperial  State,  according  to 
this  statement,  is  to  "the  people"  of  the  dependency 
considered  as  an  organized  body  capable  of  having  and 
expressing  their  "wishes  and  interests"  as  a  distinct  po- 
litical unit  or  State.  The  admission,  by  an  Imperial 
State,  of  the  principle  of  "responsible  government"  for 
a  dependency  is  therefore  nothing  more  or  less  than  the 
recognition  of  the  dependency  as  a  State  in  a  permanent 
relationship  to  the  Imperial  State  of  such  a  kind  that  the 
Imperial  State  renders  services  as  a  Judge  and  Ruler 
under  an  implied  contract — that  is,  under  an  unwritten 
Constitution. 

During  the  period  from  1800  to  1841,  great  attention 


British  Administration,  1 780-1902     505 

was  given  to  the  economic  problems  of  the  administration 
of  dependencies,  particularly  by  William  Huskisson,  who 
was  Secretary  of  State  for  War  and  the  Colonies  in  1827, 
with  the  result  that  the  statehood  of  the  dependencies 
for  economic  purposes  was  recognized  by  the  British 
Government.  Mr.  Egerton,  in  his  History  of  British 
Colonial  Policy,  thus  sums  up  the  history  of  this  period : 

Amidst  the  confusion  of  particular  enactments  we  note  a 
general  tendency.  For  the  theory  of  monopoly  a  new  theory 
has  been  substituted,  that  of  reciprocity,  to  be  ever  connected 
with  the  name  of  Huskisson. 

Inasmuch  as  a  State  cannot  perform  an  act  of  re- 
ciprocity except  toward  another  State,  the  acceptance 
by  the  State  of  Great  Britain  of  the  theory  of  Huskisson 
was  an  acceptance,  to  that  extent,  of  the  conception  of 
the  British  dependencies  as  dependent  States. 

With  the  admission  of  the  principle  of  "responsible 
government,"  as  the  busic  principle  of  the  political  rela- 
tionship between  Great  B«-itain  and  its  dependencies  and  of 
"reciprocity  "  as  the  basic  principle  of  the  economic  rela- 
tionship, came  the  perception  that  the  British  Empire  was 
a  permanent  political  organism — a  State,  federal  in  form, 
and  permanent  in  its  nature,  founded  in  the  necessities 
of  human  nature,  and  subserving  a  beneficent  purpose. 

Herman  Merivale,  who  was  Under-Secretary  of  State 
for  the  Colonies  for  many  years  and  a  profound  stu- 
dent of  colonial  administration,  in  the  last  of  his  series 
of  lectures  on  "Colonization  and  Colonies  "  delivered  at 
Oxford  University  in  the  years  1839,  1840,  and  1841, 
said: 

It  does  not  follow  as  a  necessary  consequence  that  the  at- 
tainment of  domestic  freedom  is  inconsistent  with  a  continued 
dependence  on  the  Imperial  sovereignty.  .  .  .  Union 
might  be  preserved,  for  any  reason  which  theory  has  to  show 


5o6  The  Administration  of  Dependencies 

against  it,  long  after  the  sense  of  necessary  dependence  is 
gone.  .  .  .  The  union  must  more  and  more  lose  the  pro- 
tective, and  approximate  to  the  federative  character;  and  the 
Crown  may  remain,  at  last,  in  solitary  supremacy,  the  only 
common  authority  recognized  by  many  different  Legislatures, 
by  many  Nations  politically  and  socially  distinct. 

Lord  Elgin,  in  1850,  while  Governor-General  of  Canada, 
expressed  the  conception  of  the  British  Empire  as  a 
federal  organism,  existing  permanently  and  for  beneficent 
objects,  in  a  letter  in  vi'hich  he  declared : 

You  must  renounce  the  habit  of  telling  the  Colonies  that 
the  colonial  is  a  provisional  existence.  You  must  allow  them 
to  believe  that,  without  severing  the  bonds  which  unite  them 
to  Great  Britain,  they  may  attain  a  degree  of  perfection  and 
■  of  social  and  political  development,  to  which  organized  com- 
munities of  free  men  have  a  right  to  aspire. 

In  1849,  Lord  Grey,  then  Secretary  of  State  for  War 
and  for  the  Colonies,  revived  the  Committee  of  the  Privy 
Council  for  Trade  and  Plantations.  This  Committee  had 
been  in  existence,  but  it  had  had  no  concern  for  many 
years  with  colonial  subjects.  The  occasion  of  this  re- 
vival was  the  difficulties  into  which  he  had  fallen  in  at- 
tempting to  recommend  legislation  relating  to  Australia. 
It  was  necessary  that  a  disposition  of  the  matter  should 
be  made  by  an  expert  tribunal,  whose  decision  would 
meet  with  acceptance.  The  Committee  of  the  Privy 
Council  for  Trade  and  Plantations  was  enlarged  so  as  to 
include  several  men  expert  in  colonial  administration, 
and  in  fact  adjudicated  the  whole  subject  of  the  relations 
between  Great  Britain  and  Australia.  The  Bill  recom- 
mended by  them  for  adoption  by  Parliament  went  to  the 
utmost  extent  in  regarding  the  different  colonial  com- 
munities as  States.  Though  the  Bill  was  passed  and 
met  with  the  approval  of  the  Australian  Colonies,  this 


i 


British  Administration,  1 780-1 902     507 

practice  (which  was  in  fact  a  substitution  of  a  Committee 
of  the  Privy  Council  for  the  Secretary  of  State  for  the 
Colonies)  was  not  continued,  it  evidently  being  perceived 
that,  though  most  valuable  as  an  exceptional  practice,  it 
would  lead  to  conflict  and  confusion  if  applied  habitually. 
In  1852,  the  principle  of  "responsible  government" 
was  applied  to  the  Maori  tribes  of  New  Zealand,  they  be- 
ing treated  as  dependent  States  under  a  "constitutional 
protectorate."  The  preamble  of  the  Act  of  Parliament 
was  thus  worded : 

Whereas  it  may  be  expedient  that  the  laws,  customs  and 
usages  of  the  Maori  tribes  should  for  the  present  be  maintained 
for  the  government  of  themselves  ,  .  .  and  that  particular 
districts  should  be  set  apart  within  which  such  laws,  usages 
and  customs  should  be  preserved,  etc. 

By  the  Act,  power  was  given  to  the  Crown  to  make 
provision  for  the  purposes  aforesaid,  "any  repugnancy  of 
such  native  laws    ...    to  the  law  of  England     . 
notwithstanding."       The    Crown    delegated    its   powers 
under  this  statute  to  the  Governor  of  New  Zealand. 

In  1854,  a  separate  Secretariat  for  the  Colonies  was 
established.  The  conception  of  the  British  Empire  as  a 
permanent  federal  organism,  requiring  an  administration 
different  from  that  of  Great  Britain  and  in  which  the 
relations  between  the  component  States  were  entirely 
different  from  the  relations  between  Great  Britain  and 
foreign  States,  was  thus  accepted  by  the  British  Govern- 
ment. "Responsible  government"  for  all  the  depen- 
dencies having  an  elective  legislative  Assembly  was 
thenceforth  rapidly  converted  into  the  conception  of 
"responsible  government"  for  all  dependencies.  Each 
Local  Government  was  recognized  as  a  Government 
substituted  by  the  power  of  Great  Britain  for  the  Local 
Government  which  the  dependency  would  have  formed 


5o8  The  Administration  of  Dependencies 

for  itself,  had  it  been  an  independent  State  capable  of 
having  and  expressing  distinct  "wishes  and  interests." 

The  universality,  in  the  British  Empire,  of  the  principle 
of  "responsible  government,"  using  this  expression  as 
meaning  "government  responsible  to  the  people  of  each 
dependency,"  is  illustrated  in  the  administration  of  India. 

It  had  been  perceived  by  the  French,  during  the  time 
of  their  administration  in  India,  that  the  only  possible 
function  which  the  representatives  of  a  European  State 
in  India  could  successfully  perform  was  that  of  a  Central 
Government  for  the  native  States,  and  during  the  last 
part  of  their  administration  they  had  acted  on  this  theory 
with  great  success,  keeping  in  existence  the  native  States 
as  far  as  practicable.  Clive  adopted  this  policy  on  his 
conquest  of  the  French  in  1757,  and  his  policy  was  fol- 
lowed by  his  successors.  In  the  Regulating  Acts  for 
India,  enacted  by  Parliament  in  1773  and  1784,  the 
"Presidencies"  established  by  the  East  India  Company 
in  regions  coterminous  with  the  boundaries  of  native 
States  were  recognized.  In  1793,  by  the  India  Act  of 
that  year,  the  direct  responsibility  of  Great  Britain  to  the 
people  and  States  of  India  was  recognized  by  giving 
the  Governor-General  of  the  Presidency  (that  is,  the 
dependent  State)  of  Bengal  limited  authority  over  the 
Governments  of  the  two  other  Presidencies,  Madras  and 
Bombay.  By  the  Act  of  1833,  the  Governor-General  in 
Council  of  Bengal  became  the  Governor-General  in 
Council  of  India,  vested  with  the  "superintendence, 
direction,  and  control  of  the  whole  civil  and  military 
Governments  of  all  the  said  territories  and  revenues  in 
India."  This  Act  was  due  very  largely  to  the  efforts 
of  Thomas  B.  Macaulay  (afterwards  Lord  Macaulay) 
who,  during  his  period  of  oflfice  as  a  member  of  Parlia- 
ment from  1830  to  1835,  had  made  a  special  study  of  the 
characteristics  of  India  and  of  the  needs  of  the  States 
and  populations  of  India  in  the  matter  of  government. 


British  Administration,  1 780-1 902     509 

India  thus  became  a  Federal  State  under  an  unwritten 
Constitution.  The  legislative  powers  of  each  Presidency 
were  vested  in  the  native  people  of  each  Presidency,  and 
were  exercised,  not  by  a  representative  Assembly  elected 
by  the  people,  but  by  a  Local  Government  appointed  by 
the  State  of  Great  Britain  and  acting  as  a  Substitute  and 
Trustee  Government,  following  in  part  British  principles, 
and  in  part  the  unwritten  and  written  traditions  and  cus- 
toms of  the  native  populations.  Under  this  system,  the 
functions  of  the  Supreme  Government  of  India  were  es- 
sentially dispositive.  Whatever  legislative  powers  they 
possessed  were  powers  of  executive  legislation.  They 
were  fulfilling  the  implied  contract  of  trust  and  agency 
between  the  State  of  Great  Britain  and  the  people  of  each 
Presidency. 

Macaulay's  work  in  behalf  of  the  people  of  India, 
while  he  was  a  member  of  the  Council  of  the  Governor- 
General,  during  the  years  from  1835  to  1838,  was  based 
on  a  recognition  by  him  of  the  dispositive  functions 
of  the  Indian  Government.  In  recommending  a  Penal 
Code,  which  was  afterwards  prepared  chiefly  by  him,  and 
which  is  justly  famous  for  its  simplicity  and  complete- 
ness and  for  its  adaptation  to  the  situation,  he  announced 
the  theory  on  which  it  should  be  based  as  follows : 

This  code  should  not  be  a  mere  digest  of  existing  rules  and 
regulations,  but  should  comprise  all  the  reforms  which  the 
Commission  may  think  desirable.  It  should  be  framed  on  two 
great  principles — the  principle  of  suppressing  crime  with  the 
smallest  amount  of  suffering,  and  the  principle  of  ascertaining 
the  truth  at  the  smallest  possible  cost  of  time  and  money. 

By  the  Act  of  1853,  a  body  was  established  in  India 
called  "the  Legislative  Council  of  India,"  composed  of 
a  Governor-General,  the  four  members  of  the  Executive 
Council,   four  persons   nominated  by  the  Governor  of 


5IO  The  Administration  of  Dependencies 

each  of  the  four  Presidencies,  the  Chief  Justice  and  the 
Puisne  Judge  of  the  Supreme  Court  of  Calcutta,  and 
two  persons  chosen  by  the  Governor-General.  It  was 
not  long  before  this  body  showed  the  effect  of  their  de- 
scription as  a  "Legislative  Council."  They  reasoned 
that  if  they  were,  in  fact,  a  Legislative  Council,  their 
powers  were  powers  of  legislation  and  not  of  disposition, 
and  that  they  were  not  obliged  to  execute  the  Constitu- 
tion of  the  Empire  or  the  Constitution  of  Great  Britain, 
or  the  will  of  the  native  inhabitants,  and  that  their  true 
function  was  to  execute  their  own  will.  They  therefore 
proceeded  to  criticise  and  oppose  both  the  wishes  of  the 
British  Government  and  the  wishes  of  the  native  popula- 
tions. In  1861,  Parliament  put  an  end  to  this  system,  and 
re-established  a  Central  Government  in  India  with  dis- 
tinctly dispositive  powers.  By  the  Act  of  1861,  the  num- 
ber of  ordinary  members  of  the  Executive  Council,  which 
was  thenceforth  called  "the  Council  of  the  Governor-Gen- 
eral," was  increased  from  four  to  five — one  to  be  a  barrister 
of  five  years*  standing,  with  the  Commander-in-Chief,  as 
before,  an  extraordinary  member.  In  addition,  the  Gov- 
ernor-General was  to  nominate  not  less  than  six  nor  more 
than  twelve  additional  members,  one  half  of  whom  were 
to  be  persons  not  in  the  service  of  the  Government.  All 
legislative  acts  of  the  Council,  before  becoming  opera- 
tive, were  to  receive  the  assent  of  the  Governor-General 
or  to  be  reserved  by  him  for  the  assent  of  the  King. 
Power  was  also  given  to  the  Governor-General,  in  cases 
of  emergency,  to  pass  ordinances  having  the  force  of 
laws. 

By  the  same  Act,  the  division  of  functions  between 
the  members  of  the  Governor-General's  Council  so  as  to 
make  it  the  Cabinet  of  India  was  legalized,  and  the 
Local  Governments  of  the  Presidencies  of  India  were 
reorganized  and  made  subject  to  the  disposition  of  the 
Governor-General   in   Council.      By    subsequent    Acts, 


British  Administration,  1780- 1902     511 

changes  have  been  made  in  the  composition  of  the 
Council  of  the  Governor-General,  and  of  the  Local 
Councils,  but  there  has  never  been  any  departure  from 
the  principle  established  by  the  Act  of  1861,  which  is 
that  the  instrumentalities  of  government  in  India  are  to 
be  so  constituted  as  to  most  justly  and  expertly  adjudi- 
cate and  execute  the  unwritten  Constitution  of  the  British 
Empire  in  India,  which  is  based  in  part  upon  the  Con- 
stitution of  Great  Britain  and  in  part  upon  the  traditions 
and  customs  of  the  respective  natural  divisions  of  the 
lands  and  populations  of  India,  regarded  as  States. 

In  1858,  the  instrumentalities  of  the  British  Govern- 
ment in  Great  Britain  were  remodelled  for  the  express 
purpose  of  accomplishing  the  same  result — namely,  the 
proper  and  orderly  adjudication  and  execution  of  the 
Constitution  of  the  British  Empire,  as  applied  to  India. 
By  an  Act  passed  in  that  year,  all  governmental  powers 
were  taken  from  the  East  India  Company  and  vested  in 
the  Crown,  which  was  to  act  through  a  Secretary  of 
State  for  India,  for  whose  advice  there  was  provided  a 
Council  for  India.  Though  the  Secretary  of  State  for 
India  was  required  to  act  on  his  own  responsibility  in 
advising  the  King,  he  was  obliged  to  consult  the  Council 
for  India  before  acting  at  all  and  before  advising  the 
King. 

Sir  George  Chesney  says  of  this  Council,  in  his  Indian 
Polity  : 

The  necessity  for  maintaining  a  permanent  Council  or  body 
of  some  sort,  unconnected  with  the  ebb  and  flow  of  party 
politics,  will  be  universally  recognized,  and  the  constitution 
of  this  body  will  equally  be  considered  a  matter  of  importance. 
The  number  of  Councillors  was  fixed  at  fifteen  in  the  first 
instance,  in  order  to  admit  of  its  being  fairly  representative  of 
knowledge  and  experience  gained  in  the  different  parts  of  In- 
dia and  of  the  different  interests  to  be  dealt  with;  and  making 


512  The  Administration  of  Dependencies 

allowance  for  the  proportion  of  dull  men  who  will  always 
find  their  way  into  such  a  body,  it  is  certainly  not  too  large  for 
the  purpose.  Whether  the  Council,  as  established,  is  turned 
to  the  best  account,  will  depend  on  the  procedure  laid  down 
for  its  working.  One  of  the  most  important  points  to  be  pro- 
vided for  is  the  protection  of  the  people  of  India,  the  tax- 
payers, from  the  infliction  of  improper  and  unfair  charges. 
This  was,  no  doubt,  the  object  aimed  at  in  the  provision  of 
the  Act  of  1858,  that  "no  charge  should  be  placed  upon  the 
revenues  of  India  without  the  sanction  of  a  majority  of  the 
Council." 

Speaking  of  the  relation  of  the  Council  to  the  Secre- 
tary of  State  for  India,  he  says: 

The  Secretary  of  State  should  undoubtedly  have  power  to 
override  his  Council.  It  could  not  be  allowed  that  the  policy 
of  the  British  Government  should  be  liable  to  obstruction  by 
any  other  body  than  the  Parliament  which  places  it  in  power ; 
but  the  interests  of  India  demand  that  the  Cabinet  should  at 
least  be  placed  in  possession  of  the  opinions  of  those  who  are 
best  qualified  to  judge  of  the  effect  of  any  measures  proposed 
which  will  involve  a  financial  burden  on  India. 

He  admits  that  since  it  must  be  recognized  that  "in 
dealing  with  measures  involving  military  operations, 
secrecy  is  a  necessary  condition,  and  that  the  mainte- 
nance of  secrecy  is  not  compatible  with  the  deliberation 
of  a  large  body,"  the  Secretary  of  State  for  India  must  be 
allowed  to  control  such  operations  without  the  necessity 
of  advising  with  the  whole  Council,  and  he  approves  the 
general  principle  of  the  Act  of  1858  which  allowed  a  part 
of  the  Council  to  act  as  a  Secret  Committee  in  cases 
requiring  secrecy. 

The  question  has  been  agitated  from  time  to  time  of 
replacing  the  existing  Government  of  India,  which  is 
essentially  an  executive  Government,  by  a  Government 


British  Administration,  1780- 1902     513 

which  should  have  strictly  legislative  powers.  It  has  even 
been  seriously  proposed  that  the  seat  of  such  a  legislative 
Government  should  be  in  Great  Britain.  Speaking  of 
this  subject,  Sir  George  Chesney  says: 

Hitherto  the  India  Office,  recognizing  that  its  proper  func- 
tion is  that  of  a  court  of  review,  and  that  India  can  be  properly 
governed  only  by  the  Government  in  that  country,  has  as  a  rule 
laudably  abstained  from  direct  interference  in  administrative 
details.  .  .  .  The  Secretary  of  State  for  the  time  being 
has  usually  been  scrupulous  in  maintaining  this  dividing  line 
of  the  respective  functions  of  the  two  authorities.  There  have 
indeed  been  exceptions  to  the  rule,  as  in  the  case  of  the  re- 
organization of  the  army  after  the  Mutiny,  when  a  quite  im- 
practical scheme  was  sent  forth  from  the  India  Office  cut  and 
dried  to  be  carried  out  in  India.  These  and  similar  attempts 
to  transfer  the  initiation  of  affairs  from  India  to  England 
have  served  to  bring  more  clearly  to  light  the  soundness  of  the 
policy  of  abstention. 


The  maintenance  of  this  principle,  that  India  must  be  ad- 
ministered by  the  Government  in  India — with  the  development 
lately  set  in  motion  of  local  institutions,  the  advancement  of 
the  people  of  that  country  to  a  larger  share  in  its  administra- 
tion through  the  expansion  of  the  Legislative  Councils,  and 
their  extend-^d  employment  in  all  branches  of  the  public  ser- 
vice— becomes  now  more  than  ever  a  vital  necessity,  and 
makes  it  superfluous  to  discuss  the  proposals  put  forward  from 
time  to  time  for  the  replacement  of  the  existing  Council  of 
India  by  a  larger  body.  Anything  in  the  shape  of  an  Assembly 
debating  in  public  is,  from  the  nature  of  the  case,  out  of  the 
range  of  serious  consideration.  Indians  could  not  be  brought 
to  this  country  to  serve  on  it,  at  any  rate  in  sufficient  numbers 
to  be  representative  of  the  people  of  India ;  and  the  idea  that  per- 
sons so  placed,  whether  Englishmen  or  Indians,  should  be  in 
a  position  to  advance  opinions,  still  more  to  carry  resolutions, 
for  the  result  of  which  they  would  not  be  wholly  responsible, 


SH  The  Administration  of  Dependencies 

will  not  be  entertained  by  any  one  who  has  the  most  elementary 
acquaintance  with  the  conditions  of  that  country  or  with  repre- 
sentative institutions.  If,  in  the  dim  and  distant  future,  the 
time  should  ever  arrive  when  a  Parliament  of  any  sort  is  pos- 
sible for  India,  it  must  be  set  up  in  that  country  and  not  in 
this. 

Sir  John  R.  Seeley,  in  his  Expansion  of  England, 
speaking  of  the  British  Empire  in  India,  says: 

We  call  this  Empire  a  conquest,  in  order  to  mark  the  fact 
that  it  was  not  acquired  in  any  degree  by  settlement  or  coloni- 
zation, but  by  a  series  of  wars  ending  in  cessions  of  territory 
by  the  native  Powers  to  the  East  India  Company.  But  let  us 
be  careful  how  we  take  for  granted  that  it  is  a  conquest  in  any 
more  precise  sense  of  the  word. 


India  therefore  may  be  called  a  possession  of  England  in  a 
sense  which  is  not  applicable  to  the  Colonies.  Nevertheless 
the  word  conquest,  which,  like  most  of  the  vocabulary  of  war, 
has  come  down  to  us  from  primitive  barbaric  times,  may  easily 
be  misunderstood.  We  may  still  ask  in  what  sense  England 
can  be  said  to  possess  India.  What  we  possess  we  devote  in 
some  manner  to  our  own  enjoyment.  If  I  own  land,  I  either 
take  the  profits  of  the  harvest,  or,  if  I  let  the  land  to  a  farmer, 
I  get  rent  from  it.  And  in  primitive  times  the  conquest  of  a 
country  was  usually  followed  by  possession  in  some  literal 
sense.  Sometimes  the  conquerors  actually  became  landlords 
of  the  conquered  territory  or  of  part  of  it,  as  in  that  conquest 
of  Palestine  which  we  read  of  in  the  Book  of  Joshua,  or  in 
those  Roman  conquests  where  a  certain  extent  of  confiscated 
land  was  often  granted  out  to  a  number  of  Roman  citizens. 
Now  assuredly  India  is  not  a  conquered  country  in  this  sense. 
England  has  not  seized  lands  in  India,  and  after  displacing 
the  native  proprietors  assigned  them  to  Englishmen. 

There  is  another  sense  in  which  we  may  conceive  the  con- 
dition of  a  conquered  country.     We  may  think  of  it  as  tribu- 


British  Administration,  1 780-1902     515 

tary  or  paying  tribute.  .  ,  .  Taxes  are  raised  of  course 
in  India,  as  taxes  are  raised  in  England,  but  India  is  no  more 
tributary  than  England  itself.  The  money  drawn  from  India 
is  spent  upon  the  government  of  India,  and  no  money  is  levied 
beyond  what  is  supposed  to  be  necessary  for  this  purpose. 

The  truth  is  that,  though  the  present  relation  between  India 
and  England  was  historically  created  by  war,  yet  England 
does  not,  at  least  openly,  claim  any  rights  over  India  in  virtue 
of  this  fact.  In  the  Queen's  Proclamation  of  ist  November, 
1858,  by  which  the  open  assumption  of  the  government  by  the 
Queen  was  announced,  occur  the  express  words,  "  We  hold 
ourselves  bound  to  the  natives  of  our  Indian  territories  by  the 
same  obligations  of  duty  which  bind  us  to  all  our  other  sub- 
jects." That  is,  conquest  confers  no  peculiar  rights,  or  India 
is  not  for  practical  purposes  a  conquered  country. 

What  is  unprecedented  in  the  relation  of  England  to  India 
is  the  attempt  to  rule,  not  merely  by  experts,  but  by  a  system 
founded  on  public  opinion,  a  population  not  merely  distant, 
but  wholly  alien,  wholly  unlike  in  ways  of  thinking,  to  the 
sovereign  public.  Public  opinion  is  necessarily  guided  by  a 
few  large,  plain,  simple  ideas.  When  the  great  interests  of 
the  country  are  plain,  and  the  great  maxims  of  its  government 
unmistakable,  it  may  be  able  to  judge  securely  even  in  ques- 
tions of  vast  magnitude.  But  public  opinion  is  liable  to  be 
bewildered  when  it  is  called  on  to  enter  into  subtleties,  draw 
nice  distinctions,  apply  one  set  of  principles  here  and  another 
set  there.  Such  bewilderment  our  Indian  Empire  produces. 
It  is  so  different  in  kind  both  from  England  itself  and  from 
the  Colonial  Empire  that  it  requires  wholly  different  principles 
of  policy.  And  therefore  public  opinion  does  not  know  what 
to  make  of  it,  but  looks  with  blank  indignation  and  despair 
upon  a  Government  which  seems  utterly  un-English,  which  is 
bureaucratic  and  in  the  hands  of  a  ruling  race,  which  rests 
mainly  on  military  force,  which  raises  its  revenue,  not  in  the 
European  fashion,  but  by  monopolies  of  salt  and  opium,  and 


5i6  The  Administration  of  Dependencies 

by  taking  the  place  of  a  universal  landlord,  and  in  a  hundred 
other  ways  departs  from  the  traditions  of  England. 


If  we  combine  all  the  facts  I  have  hitherto  adduced  in  order 
to  form  a  conception  of  our  Indian  Empire,  the  result  is  very 
singular.  An  Empire  similar  to  that  of  Rome,  in  which  we 
hold  the  position  not  merely  of  a  ruling  but  of  an  educating 
and  civilizing  race;  this  Empire  held  at  arm's  length,  paying 
no  tribute  to  us,  yet  costing  nothing  except  through  the  burden 
it  imposes  on  our  foreign  policy,  and  neither  modifying  nor 
perceptibly  influencing  our  busy  domestic  politics;  this  Em- 
pire nevertheless  held  firmly  and  with  a  grasp  which  does  not 
slacken  but  visibly  tightens;  the  union  of  England  and  India, 
ill-assorted  and  unnatural  as  it  might  seem  to  be,  nevertheless 
growing  closer  and  closer  with  great  rapidity  under  the  in- 
fluence of  the  modern  conditions  of  the  world,  which  seem 
favorable  to  vast  political  unions; — all  this  makes  up  the 
strangest,  most  curious,  and  perhaps  most  instructive  chapter 
of  English  history.  It  has  been  made  the  subject  of  much 
empty  boasting,  while  those  who  have  looked  deeper  have  often 
been  disposed  to  regard  the  whole  enterprise  with  despondency, 
as  a  kind  of  romantic  adventure  which  can  lead  to  nothing  per- 
manent. But,  as  time  passes,  it  rather  appears  that  we  are  in 
the  hands  of  a  Providence  which  is  greater  than  all  statesman- 
ship, that  this  fabric  so  blindly  piled  up  has  a  chance  of  be- 
coming a  part  of  the  permanent  edifice  of  civilization,  and  that 
the  Indian  achievement  of  England  as  it  is  the  strangest,  may 
after  all  turn  out  to  be  the  greatest,  of  all  her  achievements. 

The  government  of  India  has  been  called  despotic  and 
paternal,  but  it  is  not.  Despotism  implies  an  imposition 
of  the  mere  will  of  one  person  upon  another.  Paternal- 
ism is  the  same  thing  except  that  the  person  who  imposes 
his  will  on  the  other  is  assumed  to  have  a  benevolent 
purpose  in  so  doing.  The  reason  why  the  English  gov- 
ernment of  India  has  been  successful  is  that  it  has  been, 
on  the  whole,  neither  despotic  nor  paternal,  but  expert. 


British  Administration,  1780- 1902     517 

The  distinction  between  expert  government  and  des- 
potic or  paternal  government  cannot  be  insisted  upon  too 
strongly.  Expert  government  is  inconceivable  except 
as  the  outgrowth  of  republicanism  and  democracy.  It 
implies  that  the  depositaries  of  power  are  the  agents  of 
all  the  people  of  the  community,  and  hence  responsible 
to  the  people  in  the  last  resort ;  and  that  they  stand  in 
the  same  relation  to  the  people  as  the  physician  to  his 
patient  or  the  lawyer  to  his  client.  The  patient  may 
refuse  to  follow  the  law  of  health  ascertained  and  declared 
to  him  by  his  physician,  and  the  client  may  refuse  to 
follow  the  law  of  human  commerce  and  intercourse  ascer- 
tained and  declared  to  him  by  his  lawyer,  but  the  more 
the  mind  of  the  individual  is  enlightened,  the  more  will- 
ing and  anxious  is  he  to  obtain  expert  advice  and  to 
follow  it.  Expert  government  has  its  final  sanction, 
therefore,  in  the  free  will  of  the  governed. 

The  individual  in  India  has  never  been  made  to  feel 
that  he  was  merely  a  thing  or  that  he  was  a  mere  lump 
of  human  clay  which  was  either  to  be  moulded  into  an 
Englishman  or  to  be  destroyed.  His  traditions,  his 
wishes,  and  his  ideals  have  been  respected  to  the  utmost 
extent  consistent  with  the  common  welfare.  The  advice 
of  the  enlightened  mind  of  India  has  been  sought  and 
given  its  full  weight.  The  people  of  India  have  partici- 
pated in  their  own  government — not  by  popular  elections 
of  local  officials,  but  by  a  method  entirely  dignified  and 
such  as  the  most  highly  civilized  community  might  prop- 
erly adopt.  The  government  of  India  has  proceeded 
upon  the  recognition  of  and  a  respect  for  the  natural 
rights  of  men — even  the  natural  rights  of  communities 
to  distinct  statehood.  Districts  and  provinces  are 
organized  with  reference  to  natural  conditions,  and  the 
respective  districts  and  provinces  are  given  a  separate 
political  personality  as  far  as  it  is  possible  consistently 
with  the  general  welfare.    Government  by  mere  will  exists 


5i8  The  Administration  of  Dependencies 

nowhere  where  British  rule  prevails.  Government  pre- 
ceded by  an  investigation  of  rights  and  duties  and  by  a  de- 
cision based  on  this  investigation  exists  wherever  British 
rule  prevails.  The  duty  of  the  Imperial  Government  to  re- 
frain from  acting  is  recognized  as  being  equally  important 
with  its  duty  to  act,  and  when  action  is  taken,  it  is  not 
allowed  to  go  beyond  the  necessity  of  the  case.  The 
British  power  in  India  is  uniformly  recognized  as  being 
a  power  of  disposition — not  a  power  of  legislation,  and 
the  Executive  is  conclusively  bound  by  the  judgments 
of  the  courts.     It  is  a  reign  of  law,  not  a  reign  of  will. 

The  system  of  government  which  now  prevails  in  India 
is  plainly  a  development  of  the  general  conception  of  the 
Empire  as  a  political  organism  composed  of  States  in  a 
relationship  of  federal  union  under  an  unwritten  Consti- 
tution. It  is,  in  fact,  "responsible  government."  The 
responsibility  of  the  Governments  in  India  appointed  by 
Great  Britain  is  not,  it  is  true,  to  the  local  representative 
Assemblies,  but  to  the  people  of  the  States  of  India, — 
that  is,  to  the  States  of  India. 

The  British  Empire  of  the  present  day  is  federal  in 
practice  even  when  it  is  examined  from  the  standpoint 
of  its  workings  in  those  dependencies  sparsely  inhabited 
or  inhabited  by  mixed  or  barbarous  races,  in  which  any 
degree  of  popular  government  is  yet  impossible,  and 
which  are  called  Crown  Colonies  or  Constitutional  Pro- 
tectorates. Even  in  these  dependencies,  administrative 
districts  are  formed  with  the  view  of  maintaining  all 
proper  distinctions  between  separate  communities  grow- 
ing out  of  diversity  of  race,  tradition,  and  language,  and 
the  British  Administrators  recognize  and  enforce  as  far 
as  possible  the  natural  rights  of  men  and  consult  the 
enlightened  public  will  of  the  community,  so  far  as  any 
such  exists. 

In  the  working  of  the  British  Empire  since  it  has  be- 
come a  federal  organism  in  fact,  two  distinct  tendencies 


British  Administration,  1 780-1902     519 

are  noticeable :  first,  a  tendency  on  the  part  of  the  de- 
pendencies to  regard  federal  dependence  too  much  in  the 
light  of  independence;  and  second,  a  tendency  in  Great 
Britain,  either  to  admit  that  federal  dependence  and  in- 
dependence are  one  and  the  same  thing,  or  to  counteract 
the  tendency  of  the  dependencies  to  regard  themselves 
as  independent  by  converting  the  British  Federal  Empire 
into  a  British  Federal  State  under  the  control  of  an  elec- 
tive body,  composed  of  representatives  both  of  Great 
Britain  and  its  dependencies. 

The  first  tendency  was  most  observable  during  the 
period  from  1861  to  1885.  Mr.  Egerton  calls  this  period 
"the  period  of  the  zenith  and  decline  of  the  laissez-aller 
principles." 

Sir  P.  Wodehouse,  the  Governor  of  the  Cape  Colony, 
in  his  speech  at  the  opening  of  the  Cape  Parliament  in 

1870,  said: 

People  in  England,  knowing  little  of  the  Colonies  and  to 
whom  their  proper  position  is  not  brought  home,  are  fascinated 
by  the  notion  of  extending  British  institutions.  .  .  .  They 
do  not  perceive  that  the  very  principle  of  responsibility  is  op- 
posed to  the  existence  of  the  Colony,  .  .  .  that  the  day 
must  come  for  a  collision,  that  .  .  .  the  issues  [may]  be 
delayed,  but,  sooner  or  later,  it  is  inevitable;  that  this  form 
is  suitable  only  to  communities  who  desire  or  look  forward  to 
a  severance  at  no  distant  day  from  the  Mother  Country, 
whether  by  transfer  to  another  power  or  by  the  establishment 
of  an  independent  State. 

Lord  Blachford,  who,  as  Sir  F.  Rogers,  was  Permanent 
Under-Secretary  of  State  for  the  Colonies  from  i860  to 

1871,  wrote,  in  1885  : 

I  have  always  believed, — and  the  belief  has  so  confirmed 
and  consolidated  itself  that  I  can  hardly  realize  the  possibility 
of  any  one  seriously  thinking  the  contrary, — that  the  destiny 


520  The  Administration  of  Dependencies 

of  our  Colonies  is  independence;  and  that,  in  this  point  of 
view,  the  function  of  the  Colonial  Office  is  to  secure  that  our 
connection,  while  it  lasts,  shall  be  as  profitable  to  both  parties, 
and  our  separation,  when  it  comes,  as  amicable,  as  possible. 

The  period  from  1886  to  the  present  day,  which  Mr. 
Egerton  calls  "the  period  of  Greater  Britain,"  was  marked, 
at  its  beginning,  by  a  too  violent  reaction  against  the 
laissez-aller  doctrines.  It  was  at  this  period  that  the 
doctrine  which  became  known  as  "Imperial  Federation" 
took  such  strong  possession  of  a  large  part  of  the  think- 
ing population  of  Great  Britain.  The  purpose  of  this 
movement  was  to  convert  the  British  Empire  into  a 
Federal  State  under  a  central  representative  Assembly 
sitting  in  England,  composed  of  delegates  both  from 
Great  Britain  and  its  dependencies.  The  advocates  of 
this  theory  seem  to  have  admitted  that  it  was  wholly  in- 
applicable to  India.  Perhaps  there  would  have  been  a 
substantial  agreement  among  them  that  the  plan  was 
applicable  only  to  dependencies  having  elected  repre- 
sentative Assemblies. 

The  British  Government,  however,  seems  never  to 
have  been  so  much  affected  by  these  doctrines  as  it  was 
by  the  laissez-aller  doctrines.  Independence  for  the 
Colonies  was  regarded  as  a  practicable  proposition,  but 
the  conversion  of  the  British  Empire  into  a  Federal  State 
was  regarded  as  both  impracticable  in  itself  and  as  wholly 
out  of  the  question  because  it  involved  the  abdication  of 
Great  Britain, — that  is,  the  abdication  of  England, — from 
its  proud  position  as  the  Disposer  of  the  affairs  of  the 
British  Empire.  At  the  Colonial  Conference  held  in 
London  in  1887,  Lord  Salisbury,  speaking  of  the 
doctrines  of  the  Imperial-Federationist  faction,  thus 
rebuked  their  lack  of  political  sagacity : 

These  are  grand  aspirations.  .  .  .  They  are  doubtlessly 
hazy,  but  they  are  the  nebulous  matter  that,  in  the  course  of 


British  Administration,  1 780-1902     521 

ages, — in  much  less  than  ages, — will  cool  down  and  condense 
into  material  from  which  many  practical  and  business-like 
resolutions  may  very  likely  come. 

The  opinion  of  the  British  Government  concerning  the 
impracticability  of  Imperial  Federation  was  ultimately- 
adopted  by  the  conservative  thought  of  England.  Dr. 
Edward  A.  Freeman,  in  his  essay  on  TJie  Bases  of  Na- 
tional Unity,  published  in  1892,  to  which  reference  has 
heretofore  been  made,  gave  voice  to  the  Imperial  spirit 
of  the  English  State  which  makes  "Imperial  Federation," 
as  a  substitute  for  the  British  Empire,  forever  impossible 
except  as  a  matter  of  necessity,  when  he  said : 

I  am  no  lover  of  "empire";  I  am  not  anxious  for  my 
country  to  exercise  lordship  over  other  lands,  English-speak- 
ing or  otherwise.  But  I  will  not,  so  far  as  one  man  can  hinder 
it,  have  my  country  ruled  over  by  any  other  power,  even  by  a 
power  in  which  my  country  itself  has  a  voice.  If  it  is  pro- 
posed that  the  great  and  historic  Assembly  which  King  Edward 
called  into  existence  in  1295  shall  keep  its  six  hundredth  anni- 
versary by  sinking  to  the  level  of  the  Legislature  of  a  Canton 
of  a  Britannic  Confederation,  then  I  shall  be  driven,  however 
much  against  the  grain,  to  turn  Jingo  and  sing  "Rule, 
Britannia." 

The  trend  of  the  conservative  thought  of  England  for 
the  past  twenty-five  years  has  undoubtedly  been  toward 
the  formation  of  an  Imperial  Council  in  England,  com- 
posed of  experts,  which  shall  be  advisory  to  the  British 
Crown  and  Parliament,  when  acting  as  the  representative 
of  Great  Britain  as  the  Imperial  State. 

Mr.  Charles  Walter  Eddy,  writing  in  1874  on  the  sub- 
ject, "What  are  the  best  means  of  drawing  together  the 
interests  of  the  United  Kingdom  and  the  Colonies,  and 
of  strengthening  the  bonds  of  union?"  (his  paper  on  this 


522  The  Administration  of  Dependencies 

subject  being  read,  shortly  after  his  death  in  1874,  before 
the  Royal  Colonial  Institute  of  London),  said : 

Mr.  W.  Jardine  Smith,  of  Melbourne,  and  other  Colonial 
writers,  have  advocated  the  formation  of  a  Supreme  Council 
of  the  Empire,  for  the  consideration  of  the  external  affairs, 
and  others  in  which  the  whole  Empire  is  interested;  and  this 
project  of  a  Council,  rather  than  of  a  United  Parliament,  is 
clearly  the  favorite  idea  of  colonists.  It  is  one  which  is 
greatly  favored  and  facilitated  by  the  appointment  of  Agents- 
General  in  London  to  represent  all  the  larger  Colonies,  and 
these  are  in  some  instances  surrounded  by  a  court  of  advisers 
similar  to  the  Indian  Council.  This  plan  is  evidently  taking 
root,  and  expanding  and  growing  with  the  healthy  growth  of 
all  English  institutions  which  experience  shows  to  be  congenial 
and  useful. 

In  furtherance  of  this  project  of  a  Supreme  Council,  I  some 
time  ago  submitted  to  an  assembly  of  colonists  a  scheme  which 
was  received  with  a  certain  amount  of  favor,  though  it  was 
acknowledged  to  be  hopeless  to  put  it  before  the  Government 
of  the  day.  Of  this  I  will,  with  your  leave,  in  conclusion,  re- 
produce the  heads.  It  is  one  that  has  received  the  approval 
of  so  profound  a  student  of  constitutional  history  as  Mr. 
Froude,  who  wrote  on  it  as  follows:  "The  machinery  of  the 
Privy  Council  is,  as  you  say,  made  to  the  hand  for  a  judicious 
reconstruction  of  our  Colonial  relations." 

My  proposal  was  not  to  attempt  to  create  de  novo  a  power 
unknown  to  the  Constitution  that  we  all  revere,  but  still 
planting  our  footsteps  on  her  ancient  and  well  trodden  paths, 
to  take  advantage  of  the  machinery  provided  by  that  venerable 
institution,  **  the  Queen's  most  honorable  Privy  Council,"  by 
reviving  in  a  manner  suited  to  the  present  and  prospective 
exigencies  of  our  Colonies  that  department  of  it  which  was 
formed  under  the  name  of  the  Committee  of  Privy  Council 
for  Trade  and  Foreign  Plantations,  and  so  constituting  a 
branch  of  the  Council  for  advice  on  the  general  concerns  of 
the  whole  Empire,  in  like  manner  as  the  Judicial  Committee 
of  the  Council  is  constituted  as  the  Court  of  Final  Appeal  on 


British  Administration,  1 780-1902     523 

legal  matters.  I  showed  that  the  Cabinet,  whose  only  legal 
status  is  that  it  consists  only  of  Privy  Councillors,  and  [which] 
is,  in  fact,  a  committee  of  that  body,  may  be  regarded  as  the 
Standing  Committee  for  general  purposes,  and  is  supposed  to 
represent  the  prevailing  public  opinion  of  the  Kingdom  for  the 
time  being;  that  it  is  necessarily  in  harmony  with  the  House 
of  Commons,  but  with  that  only;  and  that  an  analogous  Com- 
mittee for  counsel  and  advice,  in  which  the  Colonies  as  well 
as  the  Mother  Country  should  be  represented,  would  apparently 
provide  the  whole  machinery  necessary  for  the  government  of 
the  Empire. 


The  sphere  of  this  Committee  would  be  confined  to  advice 
on  a  few  simple  but  grand  subjects, — peace,  war,  diplomacy, 
the  marshalling  of  the  forces  in  time  of  war,  the  proper  quota 
or  contingent  of  forces  to  be  furnished  by  each  Colony  for  Im- 
perial purposes,  and  the  distribution  of  the  Imperial  garrisons 
and  ships. 

Holding  as  I  do  that  a  legislative  union  of  the  Empire  is  at 
present  impossible,  yet  I  believe  that  a  Federal  Union  is  quite 
practicable,  and  may  be  accomplished  without  difficulty  by 
the  formation  of  a  Federal  Council  such  as  I  have  indicated. 

Mr.  George  R.  Parkin,  in  his  book  on  Imperial  Federa- 
tioiiy  published  in  1892,  while  advocating  the  conversion 
of  Great  Britain  and  its  self-governing  Colonies  into  a 
Federal  State  under  an  elected  representative  Parlia- 
ment, supreme  over  the  Parliament  of  Great  Britain  and 
over  the  Parliaments  of  the  respective  self-governing 
Colonies,  frankly  confessed  that  that  idea  was  not  ac- 
ceptable to  the  leading  statesmen  of  Great  Britain,  and 
gave  the  following  impartial  summary  of  the  various 
propositions  advanced  for  the  establishment  of  an  Im- 
perial Council,  which  should  be  advisory  to  the  Crown 
and  Parliament  when  acting  as  the  Imperial  Executive 
and  the  Imperial  Legislature.      He  said : 


524  The  Administration  of  Dependencies 

I  have  found  that  practical  statesmen  throughout  the  Em- 
pire, even  those  most  devoted  to  the  cause  of  national  unity, 
while  recognizing  that  the  difficulties  constantly  tend  to  dimin- 
ish, look  upon  the  immediate  realization  of  this  ideal  as  im- 
practicable, or  as  involving  too  great  a  political  effort,  too 
sweeping  a  change  in  the  existing  machinery  of  national  gov- 
ernment. They  turn  themselves  to  the  consideration  of 
measures  which  will  by  gradual  steps  and  a  process  of  consti- 
tutional growth  lead  up  to  the  desired  end. 

Prominent  among  such  measures  must  be  placed  the  pro- 
posal to  summon  periodical  conferences  of  duly  qualified 
representatives  of  the  great  Colonies  to  consult  with  the  Home 
Government  and  with  each  other  on  all  questions  of  common 
concern.  The  public  recognition  of  the  right  of  consultation, 
the  formal  summoning  of  such  conferences  by  the  head  of  the 
State,  would  of  itself  be  a  signal  proof  to  the  outside  world  of 
the  reality  of  national  unity,  a  decisive  step  towards  its  com- 
plete attainment.  By  bringing  the  leading  statesmen  of  the 
Colonies  from  time  to  time  into  immediate  contact  with  those 
of  the  Mother-Land,  the  opportunity  would  be  furnished  for 
that  personal  understanding  which  becomes  more  and  more 
necessary  in  the  conduct  of  politics  and  diplomacy.  In  pro- 
portion as  dignity  is  given  to  these  conferences,  and  as  their 
decisions  are  carried  into  effect,  their  influence  on  the  policy 
of  the  Empire  would  increase  till,  it  is  believed,  they  would 
either  themselves  develop  into  an  adequate  Federal  Council, 
or  would  have  gained  an  authority  and  experience  entitling 
them  to  indicate  the  lines  on  which  such  a  Council  could  be 
created. 


But  conferences  are  occasional,  and  it  would  still  be  neces- 
sary to  provide  some  means  of  more  continuous  contact  be- 
tween the  thought  of  the  Governments  of  the  Colonies  and 
that  of  the  Mother  Land.  On  this  point  of  an  adequate  con- 
stitutional nexus  we  have  many  important  suggestions,  to  a 
few  of  which  reference  should  be  made. 

Sir   Frederick    Pollock,   in    an    article    contributed   to   an 


British  Administration,  1 780-1902     525 

English  journal  in  March,  1891,  says:  "Is  there  not  any  way, 
short  of  a  gigantic  constitutional  experiment,  of  providing  a 
visible  symbol  and  rallying-point  for  the  feeling  of  Imperial 
patriotism  which  has  so  notably  increased  within  the  last  ten 
years  ?  I  think  there  is.  One  part  of  our  Constitution  re- 
tains, not  only  in  form,  but  in  fact,  the  vigor  of  perpetual 
youth,  and  is  capable  of  indefinite  new  growth  as  occasion 
may  require,  without  doing  violence  to  established  usage.  I 
mean  the  Privy  Council.  From  the  Privy  Council  there  have 
sprung  within  modern  times  the  Board  of  Trade,  the  Judicial 
Committee,  the  Education  Department,  the  Universities  Com- 
mittee, and  virtually,  though  not  quite  formally,  the  Local 
Government  Board,  and  the  several  commissions  now  merged 
in  the  Agricultural  Board.  Why  should  there  not  be  a  Co- 
lonial and  Imperial  Committee  of  the  Privy  Council,  on  which 
the  interests  of  the  various  parts  of  the  Empire  might  be  repre- 
sented without  the  disturbance  of  any  existing  institution  what- 
ever, and  whose  functions  might  safely  be  left,  to  a  large 
extent,  to  be  moulded  and  defined  by  experience  ?  .  .  . 
It  might  be  summoned  to  confer  with  the  Cabinet,  the  Foreign 
or  Colonial  Minister,  the  Admiralty,  or  the  War  Office,  at  the 
discretion  of  the  Prime  Minister  or  of  the  Department  con- 
cerned; and  its  proceedings  would  be  confidential. 
It  is  hardly  needful  to  mention  the  Agents-General  of  the 
self-governing  Colonies  as  the  kind  of  persons  who  should  be 
members  of  the  Committee  now  suggested,  being,  of  course, 
first  made  Privy  Councillors.  ...  I  believe  that  such  a 
Committee  might  give  us  something  better  than  a  written  Con- 
stitution for  the  British  Empire;  it  might  become  the  centre 
of  an  unwritten  one." 

Lord  Thring,  looking  at  the  question  as  a  constitutional  ex- 
pert, has  stated  in  his  opinion  that  the  best  way  in  which  the 
Colonies  could  at  present  directly  intervene  in  the  general 
policy  of  the  Empire  would  be  by  elevating  the  position  of 
Agents-General  to  one  akin  to  that  of  a  Minister  of  a  foreign 
State,  and  by  giving  them  in  addition,  as  members  of  the 
Privy  Council,  the  right  of  constitutional  access  to  the  British 
Government.     This,  he  thinks,  would  satisfy  the  immediate 


526  The  Administration  of  Dependencies 

necessities  of  the  case,  and  would  pave  the  way  for  the  fuller 
representation  which  must  come  with  the  fuller  acceptance  of 
national  responsibility. 

Nothing  can  more  fully  show  the  change  that  has  come  over 
the  public  mind  than  the  fact  that  proposals  such  as  these  are 
now  made  by  constitutional  authorities  and  responsible  public 
men.  It  illustrates  a  complete  reversal  of  the  policy  which 
was  assumed  without  question  by  the  statesmen  of  the  last 
generation.  The  discussion  has  become  one  not  of  the  prin- 
ciple of  unity,  but  of  ways  and  means  to  arrive  at  the  most 
satisfactory  constitutional  nexus  between  the  Mother  Land 
and  her  offshoots. 

Sir  Charles  Dilke,  in  the  second  edition  of  his  Prob- 
lems of  Greater  Britairiy  published  in  1890,  disap- 
proved the  proposition  to  convert  the  Agents-General  of 
the  self-governing  Colonies  into  an  Imperial  Council  and 
made  the  following  pertinent  suggestion  concerning  the 
authority  which  such  a  Council  would  have  as  compared 
with  an  Imperial  Council  composed  of  English  Privy 
Councillors: 

A  Colony  may  be  disinclined  to  allow  the  Mother  Country 
to  declare  that  a  thing  cannot  be  done  on  account  of  Imperial 
interests  or  Imperial  treaties,  but  each  Colony  would  admit  the 
validity  of  such  a  declaration  from  the  Mother  Country  more 
readily  than  she  would  tolerate  interference  from  the  repre- 
sentatives of  other  Colonies.  At  the  same  time,  while  it  is 
difficult  to  make  a  Council  of  the  Agents-General,  there  is  no 
reason  why  we  should  not  give  them  a  nominal  position  which 
would  correspond  in  dignity  with  the  services  that  they  already 
render.  They  are,  in  fact,  taken  individually,  among  the 
most  trusted  of  the  councillors  of  the  Empire,  and  those  who 
have  held  for  some  years  the  position,  and  who  have  had  the 
confidence  of  successive  Governments,  might  well  be  placed 
formally  in  the  Imperial  Privy  Council. 

Lord  Brassey,  in  a  speech  delivered  at  Leeds  on  March 


British  Administration,  1 780-1 902     527 

13,  1891,  which  is  reprinted  in  "Wxs  Papers  and  Addresses 
on  Imperial  Federation  and  Colonization,  said  : 

The  appointment  of  a  Colonial  Council  to  advise  with  the 
Secretary  of  State  for  the  Colonies,  as  the  Indian  Council 
advises  with  the  Secretary  of  State  for  India,  is  a  more  limited 
proposal  [than  that  for  Imperial  Federation],  and  for  this  the 
time  is  near  at  hand,  if  it  has  not  already  come.  As  an  ex- 
ample of  what  it  seems  practicable  to  do,  I  might  refer  to  the 
recent  Presidential  decree  under  which  a  Colonial  Council  has 
been  created  in  France,  with  provision  for  the  representation 
of  the  Colonies,  in  association  with  other  members  possessing 
special  knowledge  and  qualifications. 

Hon.  Joseph  Chamberlain,  the  present  Secretary  of  State 
for  the  Colonies,  in  a  speech  to  the  Premiers  of  the  self- 
governing  Colonies,  delivered  at  the  time  of  the  second 
Queen's  Jubilee  in  1897,  advocated  the  establishment  of 
an  Imperial  Council  advisory  to  the  British  Government 
in  which  the  self-governing  Colonies  should  be  repre- 
sented.    His  words  were : 

I  feel  that  there  is  a  real  necessity  for  some  better  machinery 
of  consultation  between  the  self-governing  Colonies  and  the 
Mother  Country,  and  it  has  sometimes  struck  me — I  offer  it 
now  merely  as  a  personal  suggestion — that  it  might  be  feasible 
to  create  a  Great  Council  of  the  Empire  to  which  the  Colonies 
would  send  representative  Plenipotentiaries, — not  mere  dele- 
gates who  were  unable  to  speak  in  their  name  without  further 
reference  to  their  respective  Governments,  but  persons  who 
by  their  position  in  the  Colonies,  by  their  representative  char- 
acter, and  by  their  close  touch  with  Colonial  feeling,  would 
be  able,  upon  all  subjects  submitted  to  them,  to  give  really 
effective  and  valuable  advice. 

To  a  Council  of  this  kind  would  be  committed,  in  the  first 
instance,  the  discussion  of  all  minor  subjects  of  common 
interest,  and  their  opinion  would  be  taken  and  would  weigh 


528  The  Administration  of  Dependencies 

most  materially  in  the  balance  before  any  decision  were  come 
to  either  by  this  country  or  by  the  Legislatures  of  the  several 
Colonies  in  regard  to  such  matters. 

Now,  gentlemen,  in  connection  with  this  subject  we  have 
already  made  a  small  advance,  upon  which  I  congratulate 
myself,  since  it  was  accomplished  during  my  term  of  office, 
though  it  was  prepared  by  my  predecessors;  and  it  may  have 
in  the  future  important  results.  The  Judicial  Committee  of 
the  Privy  Council  is  the  great  Judicial  Court  of  Appeals  of 
the  Empire.  It  is  the  nearest  approach,  the  closest  analogy, 
to  the  Supreme  Court  of  the  United  States.  It  is  a  body  of 
almost  universal  and  world-wide  reputation  and  authority, 
and  it  is  our  desire  naturally,  in  pursuit  of  the  ideas  which  I 
am  venturing  to  put  before  you,  to  increase  its  authority,  if 
that  be  possible,  and  to  give  it  a  more  representative  character, 
and  with  that  view  we  have  most  gladly  secured  the  appoint- 
ment, as  Privy  Councillors,  of  distinguished  Judges  from  the 
courts  of  Canada,  of  Australia,  and  of  South  Africa,  and  they 
now  will  take  their  seats  on  equal  terms  with  the  other  mem- 
bers of  the  Judicial  Committee. 

The  magnitude  and  importance  of  the  great  States  of 
Canada  and  Australia  make  it  necessary  for  English 
statesmen,  w^hen  speaking  of  such  an  Imperial  Council, 
to  speak  of  it  as  if  it  were  to  be  a  representative  Assembly. 
It  seems,  however,  that  such  a  representative  Assembly 
would  be  opposed  to  the  true  character  of  a  Federal  Em- 
pire, unless  it  shall  prove  possible  to  form  a  Federal 
Empire  under  a  written  Constitution.  So  long  as  the 
Constitution  of  the  Federal  Empire  is  unwritten  (and  an 
unwritten  Constitution  seems  at  present  necessary  in  a 
Federal  Empire),  the  function  of  the  Imperial  Council 
would  be  to  represent  the  Imperial  State  in  the  fulfilment 
of  its  dispositive  functions.  If  the  Member-States  were 
to  be  represented  in  this  Imperial  Council,  the  Imperial 
State  would  be  relieved  to  this  extent  from  its  Imperial 


British  Administration,  1 780-1 902     529 

obligations,  and  division  of  responsibility  would  inevitably- 
lead  to  a  weakening  of  its  authority.  The  Agents  of  the 
dependencies  should  come  before  the  Imperial  Council 
as  the  Agents  for  independent  States  come  before  an 
International  Tribunal.  They  should  come  as  a  matter 
of  choice  and  as  a  matter  of  right,  but  they  should  come 
to  present  the  case  at  issue  and  not  to  decide  it.  When 
the  decisions  of  the  Imperial  Council  cease  to  command 
respect  and  to  be  followed  implicitly  by  the  States  whose 
rights  are  adjudicated  by  it,  the  Federal  Empire  must  be 
replaced  by  a  Federal  State  under  a  Central  Legislature 
having  supreme  power  within  a  sphere  carefully  defined 
by  a  written  Constitution.  An  Imperial  Council  which 
should  be  in  part  an  Interstate  Tribunal  and  in  part  an 
Imperial  Parliament  is  perhaps  possible,  but  whether 
it  would  be  successful  in  its  operation  is  exceedingly 
doubtful.  Instead  of  decreasing  friction  and  jealousies 
between  the  different  parts  of  the  Empire,  it  seems  that 
it  would  be  likely  to  increase  them.  Dispositive  and 
legislative  functions  are  opposed  to  each  other  in  the 
nature  of  things,  and  experience  seems  to  prove  that  a 
representative  Assembly  can  habitually  exercise  only  the 
power  of  legislation. 

It  seems,  therefore,  that  the  present  tendency  of 
thought  in  England  is  toward  the  solution  of  the  prob- 
lems growing  out  of  the  relationship  between  Great 
Britain  and  those  of  its  dependencies  which  have  the 
highest  degree  of  acknowledged  statehood,  through  the 
instrumentality  of  an  Imperial  Council,  the  function  of 
which  it  sliall  be  to  adjudicate  the  political  rights  of 
Great  Britain  and  these  dependencies,  and  the  civil  rights 
of  their  inhabitants  as  against  the  Empire,  and  to  assist 
the  King  and  the  Parliament,  acting  as  the  Imperial 
Executive  and  Legislature,  in  making  all  needful  rules 
and  regulations  and  in  taking  all  necessary  measures  to 
effectuate  the  disposition  of  the  affairs  of  the  Empire. 


530  The  Administration  of  Dependencies 

The  Imperial  Council  is  to  be  neither  co-ordinate  with 
nor  subordinate  to  the  Secretary  of  State  for  the  Colo- 
nies nor  advisory  to  him,  since  an  investiture  of  such  a 
Committee  with  co-ordinate  power  would  lead  to  conflict 
and  paralysis  of  both,  and  investiture  with  subordinate 
or  advisory  power  would  have  the  effect  to  weaken  its 
prestige  as  an  Imperial  Council.  It  is  apparently  to  be 
an  Interstate  Tribunal  for  superintending  the  Secretary 
of  State  for  the  Colonies  by  reviewing  his  adjudications 
upon  the  application  of  persons  interested.  It  is  to  be 
the  ultimate  adviser  of  the  Crown  and  Parliament  when 
acting  as  the  Imperial  Executive  and  Legislature. 

The  great  problem  of  the  British  Empire  at  the  present 
time  is  to  discover  some  just  basis  upon  which  self-gov- 
erning colonies,  so  called, — that  is,  colonies  whose  state- 
hood has  been  definitely  recognized, — may  contribute 
to  the  expense  of  the  Imperial  defence  and  welfare. 
Neither  the  Declaratory  Act  of  1766,  under  which 
Great  Britain  claimed  the  right  to  legislate,  by  Acts 
of  its  Parliament,  according  to  its  mere  will,  so  as  to 
bind  the  people  of  all  the  dependencies,  whether  self- 
governing  or  not,  "in  all  cases  whatsoever,"  nor  the 
Act  of  1778,  by  which  it  was  declared  that  "  from  and 
after  the  passage  of  this  Act  the  King  and  Parliament 
of  Great  Britain  will  not  impose  any  duty,  tax,  or  assess- 
ment whatsoever,  piayable  in  any  of  his  Majesty's  Colo- 
nies, Provinces  and  Plantations,  in  North  America  or 
the  West  Indies,  except  only  such  duties  as  it!^may  be 
expedient  to  impose  for  the  regulation  of  commerce  "  has 
ever  been  repealed ;  and  these  statutes  have  stood  from 
that  day  to  this  as  a  barrier  to  prevent  Great  Britain  from 
obtaining,  in  any  manner,  any  contribution  from  any 
self-governing  Colony  toward  the  expense  of  the  Imperial 
defence  and  welfare.  In  the  second  edition  of  Alpheus 
Todd's  Parliamentary  Government  in  the  British  ColonieSy 
published  in  1894,  it  is  said: 


British  Administration,  1780- 1902     531 

The  Declaratory  Statute  of  1766,  with  the  proviso  agreed 
to  in  1778,  that  it  shall  not  be  construed  to  sanction  taxation 
for  revenue  purposes,  is  still  to  be  regarded  as  embodying  the 
constitutional  assertion  of  the  supreme  authority  which  is 
exercisable  by  the  Imperial  Parliament  over  all  the  Queen's 
dominions,  notwithstanding  that  they  may  be  in  possess- 
ion of  Local  Legislatures  with  powers  for  local  self-govern- 
ment. 


So  long  as  these  statutes  remain,  every  British  depen- 
dency— even  the  Dominion  of  Canada  and  the  Common- 
wealth of  Australia — is,  theoretically,  on  no  higher  grade 
than  a  county  or  parish  of  England  under  exemption  from 
payment  of  taxes  for  the  support  of  the  State  Govern- 
ment of  Great  Britain.  Theoretically  the  power  of  Great 
Britain  over  Canada  and  Australia  is  unconditional  and 
unlimited  except  in  the  matter  of  taxation,  and  it  is  due 
only  to  its  grace  and  favor  that  it  does  not  reduce  both 
these  enormous  States  to  a  condition  of  absolute  sub- 
jection. Under  such  a  theory,  every  dependency  must, 
out  of  self-respect,  refuse  to  contribute  to  support  the 
power  of  the  dominant  State  over  them. 

The  power  which  Great  Britain  has  actually  exercised 
in  the  British  Empire  for  more  than  half  a  century  has 
been  a  power  of  disposition,  and  not  a  power  of  legisla- 
tion ;  yet  rather  than  admit  this  to  be  the  fact,  the  British 
Government  to-day  professes  itself  to  be  in  favor  of  a 
union,  at  some  future  time,  between  Great  Britain  and  its 
self-governing  Colonies,  in  which  necessarily  England 
will  sink  to  a  level  with  all  the  rest  the  of  members  of 
the  Union,  and  all  the  affairs  of  the  Federal  State  thus 
formed  will  be  managed  by  a  common  Parliament.  Only 
in  this  way  does  even  Mr.  Chamberlain  see  any  hope  of 
obtaining  any  contribution  towards  the  expense  of  the 
Imperial  defence  and  welfare.  In  the  speech  from  which 
the  above  extract  is  taken  he  said : 


532  The  Administration  of  Dependencies 

It  may  be  that  the  time  has  come,  and  if  not  I  believe  it 
will  come,  when  the  Colonies  will  desire  to  substitute  for  the 
slight  relationship  which  at  present  exists  a  true  partnership, 
and  in  that  case  they  will  want  their  share  in  the  management 
of  the  Empire  which  we  like  to  think  is  as  much  theirs  as  it  is 
ours.  But,  of  course,  with  the  privilege  of  management  and 
control  will  also  come  the  obligation  and  the  responsibility. 
There  will  come  some  form  of  contribution  toward  the  expense 
for  objects  which  we  shall  have  in  common. 

The  reason  for  the  insistence  upon  the  theory  that  the 
power  of  Great  Britain  over  its  dependencies  is  the  power 
of  legislation  is,  undoubtedly,  that  the  British  Govern- 
ment fears,  as  it  has  always  feared,  that  an  admission 
that  it  was  not  would  involve  an  admission  that  the 
British  Parliament  had  no  power  in  the  Empire.  If, 
however,  the  British  Empire  were  recognized  as  a  Federal 
Empire,  this  would  necessarily  imply  that  the  State  of 
Great  Britain  was  the  Protector  and  Disposer  of  the  Em- 
pire, and  that  it  might  act  through  any  instrumentality 
of  its  Government  that  it  saw  fit,  and  hence  through  the 
Parliament.  While  it  is  undoubtedly  true  that  a  great 
body  like  the  British  Parliament,  in  which  the  Lower 
House  is  composed  of  the  elected  representatives  of  the 
people  of  Great  Britain,  is,  by  its  nature,  unfitted  for  the 
steady  and  constant  adjudication  of  the  delicate  questions 
which  arise  in  the  course  of  the  relation  between  Great 
Britain  and  its  dependencies,  there  exists,  on  occasions, 
the  necessity  for  submitting  certain  great  questions  in 
the  administration  of  the  Empire  to  a  tribunal  for  final 
settlement;  and  on  such  occasions  of  emergency  the 
British  Parliament  and  the  people  of  Great  Britain  must 
undoubtedly  settle  the  question  and,  if  necessary,  support 
their  decision  by  force  and  arms. 

Admiral  Sir  John  Colomb  in  his  article  entitled  "A 
Survey  of  Existing  Conditions,"  printed  in  the  volume 


British  Administration,  1 780-1902     533 

of  essays  entitled  Britannic  Confederation,  to  which  refer- 
ence has  already  been  made,  said  : 

Nominally  the  Parliament  of  the  United  Kingdom,  as  well 
as  the  Crown,  retains  supreme  authority  over  the  Parliaments 
of  self-governing  Colonies.  Practically,  the  power  of  Parlia- 
ment is  a  reserve  force,  to  be  called  out  of  abeyance  only  in 
great  emergencies. 

Lord  Chancellor  Norton  (formerly  Baron  Adderley),  in 
an  article  entitled  "How  Not  to  Retain  the  Colonies," 
in  the  Nineteenth  Century  for  July,  1879,  said: 

There  is  no  dispute  as  to  the  entire  control  which  all  self- 
governing  British  Colonial  communities  have  over  matters  of 
their  own  internal  and  local  concern.  The  Imperial  Parlia- 
ment would  never  think  of  interfering  in  exclusively  Colonial 
legislation,  nor  could  the  Sovereign  constitutionally  withhold 
the  royal  assent  from  responsible  Ministers  possessing  the  con- 
fidence of  the  Parliament  passing  such  measures. 

The  legislative  authority  of  the  Imperial  Parliament  is  in 
theory  transcendent,  and  extends  over  Colonies  and  all  do- 
minions of  the  Sovereign;  but  in  Colonies  under  government 
responsible  to  their  own  representative  Legislatures,  it  is  prac- 
tically never  directly  exerted  at  all.  If  it  were,  it  would 
reduce  constitutional  government,  recognized  and  established 
in  a  Colony,  to  a  fiction,  sham,  and  delusion,  fraught  with 
mischief   alike    to   the   bastard    Colony,   and  to  the  Mother 

Country  so  degrading  herself  abroad There  are, 

however,  subjects  of  legislation  which  cannot  be  considered 
of  exclusive  interest  to  any  Colony,  affecting  the  interests  of 
the  whole  Empire;  or  based  on  universal  principles,  which 
may  be  looked  on  as  a  sort  of  common  law  or  twenjus  gentium  ; 
or  comprised  within  great  Imperial  statutes  and  decisions, 
which  would  be  violated  by  contrary  legislation  in  the  Colony. 

In  the  second  edition  of  Alpheus  Todd's  Parliauicntary 
Government  in  the  British  Colonics,  it  is  said : 


534  The  Administration  of  Dependencies 

The  Colonial  possessions  of  the  British  Crown,  howsoever 
acquired  and  whatever  may  be  their  political  constitution, 
are  subject  at  all  periods  of  their  existence  to  the  legislative 
control  of  the  Imperial  Parliament.  But  in  practice,  especially 
in  the  case  of  Colonies  enjoying  representative  institutions  and 
responsible  government,  the  Mother  Country,  in  deference  to 
the  principle  of  self-government,  has  conceded  the  largest 
possible  measure  of  local  independence,  and  practically  exerts 
its  supreme  authority  only  in  cases  of  necessity,  or  when  Im- 
perial interests  are  at  stake. 


If  the  British  Empire  w^ere  to  be  formally  recognized 
by  the  British  Government  as  a  Federal  Empire,  and  the 
power  of  the  State  of  Great  Britain  hence  recognized  as 
a  power  of  disposition,  the  present  position  of  the  British 
Parliament  in  the  Empire  would  not  be  altered,  and  the 
actual  administration  of  the  affairs  of  the  Empire  would 
be  changed  only  in  the  single  respect  that  the  State  of 
Great  Britain  could  then  claim  the  right  to  adjudicate, 
by  an  expert  tribunal,  along  with  all  other  questions,  the 
amount  and  manner  of  the  contributions  of  the  depend- 
encies to  the  Imperial  defence  and  welfare,  and  the  de- 
pendencies could  with  dignity  and  propriety  contribute 
according  to  such  dispositions. 

Nothing  stands  in  the  way  of  such  a  recognition  except 
two  statutes  repudiated  by  the  United  States  of  America, 
when  they  were  Colonies  of  Great  Britain,  as  violations 
of  the  Constitution  of  the  British  Empire. 

There  is  evident,  in  the  most  recent  thought  in  Eng- 
land, a  tendency  to  renounce  the  old  theory  of  the  un- 
conditional and  unlimited  power  of  Great  Britain  over 
its  dependencies,  and  to  substitute  for  it  the  theory  em- 
bodied in  the  American  Constitution,  that  the  Imperial 
power  is  conditional  and  limited  and  essentially  a  trust  or 
agency  to  be  performed  by  the  Imperial  State  for  the 
benefit  of  its  dependent  States.     Mr.  Spencer  Wilkinson 


British  Administration,  1 780-1902     535 

(the  collaborator  of  Sir  Charles  Dilke  in  their  recent  work 
on  Imperial  Defence)  says,  in  his  book  entitled  The  Na- 
tions Awakening,  published  in  1896,  which  Sir  Charles 
Dilke  approves  in  his  recent  book,  The  British  Empire  : 


The  title  of  Empire  and  the  quality  of  a  British  possession 
or  dependency  give  to  the  work  of  Great  Britain  in  India  a 
certain  amount  of  ambiguity.  There  is  about  a  government 
of  this  kind  a  tinge  of  vain-glory  which  lends  itself  to  the  un- 
amiable  pride  of  race.  The  perfect  type  of  the  kind  of  work 
which  is  carried  on  in  India  is  to  be  seen  in  Egypt,  where  a 
similar  task  has  been  undertaken  without  any  outward  show. 
The  British  administrators  in  Egypt  are  true  rulers  because  they 
are  truly  the  servants  of  the  Egyptians.  Englishmen  whose 
pride  in  their  country  consists  in  the  pleasure  which  they  de- 
rive from  the  excellence  of  the  work  done  by  the  nation  care 
little  for  names  and  titles.  They  do  not  want  to  call  Egypt  a 
British  possession  or  even  a  British  protectorate,  and  are  con- 
tent that  the  work  done  for  that  country  should  be  such  as 
commands  the  approval  of  impartial  judges.  .  .  .  Lord 
Cromer  and  his  assistants  are  the  representatives  of  the  noblest 
work  that  has  ever  been  undertaken  by  any  nation,  and  in 
carrying  on  that  work,  they  personify  the  spirit  of  the  British 
Empire. 

The  conception  which  we  have  formed  of  empire,  that  it  consists 
in  services  rendered  to  the  races  over  whom  it  is  extended,  is  incon- 
sistent with  a  desire  for  a  monopoly.  England  may  justly  insist, 
as  far  as  her  opportunities  offer,  that  no  European  nation 
shall  found  an  Empire  for  the  exclusive  benefit  of  its  own  sub- 
jects. We  may  be  content  that  France  in  her  Colonies  shall 
spread  the  spirit  of  French  institutions;  that  Russia  shall 
Russify  the  inhabitants  of  the  Steppes  of  Central  Asia,  and  that 
the  German  Colonies  in  Africa  shall  be  administered  according 
to  German  traditions  and  in  accordance  with  German  ideas. 
But  we  may  fairly  demand  the  general  recognition  oi  the  canon 
which  we  have  set  up  for  ourselves,  that  a  community  capable  of 
self-government    shall    regulate   its   affairs   without    restriction 


53^  The  Administration  of  Dependencies 

according  to  its  judgment^  but  that  where  we  are  acting  as  trustees 
for  a  race  subject  to  our  rule,  we  have  no  right  to  exclude  the 
trade  or  the  intercourse  of  other  nations. 

Mr.  Chamberlain's  views  of  the  mission  of  the  British 
Empire  are  well  known.  According  to  him,  the  purpose 
of  the  exercise,  by  England,  of  the  Imperial  power  is  to 
extend  the  Pax  Britannica  over  all  the  people  of  the  Em- 
pire, and  to  keep  the  peace  by  arbitrating  disputes  with 
and  between  the  strong  Colonies,  and  equalizing  eco- 
nomic conditions  between  all  parts  of  the  Empire.  In 
a  speech  before  the  Royal  Colonial  Institute,  delivered 
in  1897,  he  declared  that  with  respect  to  the  self-govern- 
ing Colonies  "the  sense  of  possession  has  given  place  to 
the  sentiment  of  kinship  "  ;  and  that  with  respect  to  those 
not  capable  of  self-government,  "the  sense  of  possession 
has  given  place  to  the  sense  of  obligation."  Speaking  of 
this  obligation,  he  said  : 

We  feel  now  that  our  rule  over  these  territories  can  be 
justified  only  if  we  can  show  that  it  adds  to  the  happiness  and 
prosperity  of  the  people.  ,  .  .  Such  a  mission  involves 
great  responsibility.  .  .  .  Great  is  the  task,  great  is  the 
responsibility,  but  great  is  the  honor;  and  I  am  convinced 
that  ...  we  shall  be  able  to  fulfil  the  mission  which  our 
history  and  national  character  have  imposed  upon  us. 

Upon  the  whole,  it  seems  not  too  much  to  say  that 
the  sentiment  of  the  English  people  for  humanity  and 
justice  has  rendered  obsolete  the  theory  for  which  Eng- 
land stood  in  the  war  with  the  American  Colonies,  and 
that  the  British  Empire  of  to-day  is  a  Federal  Empire. 


CHAPTER   XXVI 

AMERICAN   ADMINISTRATION,   I787-I902 

THE  first  Congress  which  assembled  after  the  adop- 
tion of  the  Constitution,  by  an  Act  passed  at  its  first 
session  in  the  year  1789,  recognized  that  it  was  its 
duty  to  withdraw  from  the  direct  administration  of  the  de- 
pendencies in  the  Northwest  Territory.  Although,  under 
the  Ordinance  of  1787,  the  reports  of  the  Governor  were 
required  to  be  made  to  the  Congress,  and  the  Congress 
had  power  to  appoint  and  remove  all  the  officers  con- 
cerned in  the  Local  Government  of  the  Northwest  Ter- 
ritory, Congress,  by  this  Act,  recognized  that  these 
functions  ought  properly  to  be  performed  by  the  Presi- 
dent. The  officers  of  the  Local  Government  of  the 
Northwest  Territory  were  not  considered  to  be  "officers 
of  the  United  States"  which,  under  the  Constitution 
of  the  United  States,  the  President  was  authorized  to 
appoint  by  and  with  the  advice  of  the  Senate.  If  they 
had  been,  no  Act  of  Congress  would  have  been  neces- 
sary. The  provisions  of  the  Constitution  would  have 
controlled,  and  would  have  superseded  the  inconsistent 
provisions  of  the  Ordinance  of  1787.  The  preamble  stated 
that  the  purpose  of  the  Act  was  to  "adapt  "  the  Ordi- 
nance of  1787  to  the  Constitution.  If  the  Constitution 
had  controlled  the  Ordinance,  it  would  not  have  been 
proper  to  speak  of  "adapting"  the  Ordinance  to  the 
Constitution.  The  Ordinance  was  plainly  recognized  as 
a  "needful  rule  and  regulation  respecting"  the  North- 
west  Territory,  made  in  the  exercise  of  the  power   of 

537 


53^  The  Administration  of  Dependencies 

disposition,  and  forming  a  part  of  the  Imperial  Constitu- 
tion relating  to  the  Northwest  Territory,  and  the  purpose 
of  the  Act  was  to  "adapt "  the  Imperial  Constitution  to 
the  Constitution  of  the  American  Union — that  is,  to  apply 
a  similar  rule  where  the  local  conditions  and  circumstances 
of  the  Union  and  its  dependencies  were  the  same,  and 
a  different  rule  where  the  local  conditions  and  circum- 
stances of  each  were  different.  Only  that  which  is  co- 
ordinate with  another  thing  can  be  "adapted"  to  it. 

During  the  period  from  1787  to  1799,  ^^^  Governor  and 
Judges,  acting  as  the  Local  Legislature,  framed  laws  such 
as  they  considered  to  be  adapted  to  the  needs  of  the  in- 
habitants of  the  Territory,  the  provision  of  the  Ordinance 
which  required  them  to  select  laws  from  the  laws  of  some 
one  of  the  States  having  been  found  to  be  impracticable. 
Though  these  laws  were  obviously  void,  Congress  re- 
frained, after  careful  consideration,  from  taking  any  ac- 
tion to  nullify  them,  and  in  1799  they  were  re-enacted  by 
the  General  Assembly,  upon  the  establishment  of  the 
Temporary  Government.  During  all  this  period  Congress 
also  refrained  from  enacting  any  local  legislation  for  the 
Northwest  Territory,  thus  recognizing  the  statehood  of 
this  dependent  region,  and  recognizing  the  Governor  and 
Judges  as  the  Substituted  and  Trustee  Government  for 
the  people  of  the  region,  as  a  dependent  State. 

The  same  system  of  government  which  was  applied  to 
the  Northwest  Territory  by  the  Ordinance  of  1787,  as 
adapted  to  the  Constitution  by  the  Act  of  1789,  was  ap- 
plied to  the  dependencies  southeast  of  the  Ohio  River  as 
they  were  formed,  it  being  made  a  condition  in  the  deeds 
of  cession  from  North  and  South  Carolina  and  Georgia 
that  this  system  should  be  applied,  with  the  exception 
of  the  anti-slavery  provision. 

When  the  Louisiana  Purchase  was  being  discussed  in 
Congress  in  December,  1803,  Henry  W.  Livingston,  then 
a  Member  of  Congress  from  New  Jersey,  wrote  to  Gou- 


American  Administration,  1787- 1902    539 

verneur  Morris  to  obtain  from  him  his  views  concerning 
the  scope  and  meaning  of  the  clauses  of  the  Constitution 
relating  to  the  disposition  of  the  dependencies,  and  to 
the  admission  of  new  States  into  the  Union.  Morris  re- 
plied that  the  Convention  intended  both  these  clauses  to 
have  an  inclusive  and  universal  meaning.  Relating  to 
the  former,  he  wrote : 

I  always  thought  that  when  we  should  acquire  Canada  and 
Louisiana  it  would  be  proper  to  govern  them  as  provinces  and 
allow  them  no  voice  in  our  councils.  In  wording  the  third 
section  of  the  fourth  Article  I  went  as  far  as  circumstances 
would  permit  to  establish  the  exclusion.  Candor  obliges  me 
to  add  my  belief  that,  had  it  been  more  pointedly  expressed, 
a  strong  opposition  would  have  been  made. 

After  Jefferson  had  once  become  satisfied  that  Louisi- 
ana had,  by  the  operation  of  the  treaty  of  cession,  be- 
come a  dependency  of  the  American  Union,  he  seems  to 
have  felt  no  doubt  but  that  the  power  of  the  Union  over 
Louisiana  was  unconditional  and  unlimited.  The  Act 
of  1804,  entitled  "An  Act  Erecting  Louisiana  into  Two 
Territories  and  Providing  for  the  Temporary  Government 
thereof,"  in  fact  provided  for  the  government  of  that 
region,  without  any  reference  to  any  specific  period  of 
duration,  by  a  more  absolute  form  of  government  than 
was  ever  imposed  by  Great  Britain  upon  any  of  the 
American  Colonies.  The  whole  political  power  in  the 
Local  Government  of  the  region  was  vested  in  a  Governor 
and  a  Council  of  thirteen  members,  all  appointed  by  the 
President,  by  and  with  the  advice  and  consent  of  the 
Senate.  The  Governor  and  his  Council  constituted  a 
Legislative  Assembly,  with  legislative  powers  extending 
to  all  rightful  subjects  of  legislation,  except  that  no  law 
was  to  be  valid  that  was  inconsistent  with  the  Consti- 
tution of  the  United  States.     Certain  specified  Acts  of 


540  The  Administration  of  Dependencies 

Congress  were  to  be  regarded  as  in  force  in  the  region, 
and  Congress  assumed  that  it  had  the  right  to  make  laws 
of  sufficient  force  and  validity  to  bind  the  inhabitants  of 
the  region  in  all  cases  whatsoever,  according  to  its  mere 
will. 

The  committee  of  the  House  of  Representatives  ap- 
pointed to  consider  and  report  upon  the  petition  of  the 
inhabitants  of  Louisiana  to  be  relieved  from  some  of  the 
more  arbitrary  provisions  of  the  Act  of  1804,  in  their 
report,  made  January  25,  1805,  said: 

Relying  on  the  good  sense  of  the  people  of  Louisiana  to 
point  out  to  them  that  the  United  States  cannot  have  incurred 
a  heavy  debt  in  order  to  obtain  the  Territory,  merely  with  a 
view  of  exclusive  or  especial  benefit  of  its  inhabitants,  your 
committee  at  the  same  time  earnestly  recommend  that  every 
indulgence  not  incompatible  with  the  interests  of  the  Union  may 
be  extended  to  them.  Only  two  modes  present  themselves,  whereby 
a  dependent  province  may  be  held  in  obedience  to  a  Sovereign  State 
— force  and  affection.  The  first  of  these  is  not  only  repugnant 
to  all  our  principles  and  institutions  of  government,  but  it 
could  not  be  more  odious  to  those  on  whom  it  would  operate 
than  it  would  be  hostile  to  the  best  interests  as  well  as  the 
dearest  predilections  of  those  by  whom,  in  this  instance,  it 
would  have  to  be  exercised.  The  United  States  .  .  . 
form  the  patrimony  of  a  free  and  enlightened  people  who 
control,  while  they  constitute  the  fund  from  which  men  and 
money,  of  which  military  power  is  composed,  can  be  drawn. 

It  can  never  be  the  interest,  therefore,  of  the  people  of  the 
United  States  to  subject  themselves  to  the  burthens  and  their 
liberties  to  the  dangers  of  a  vast  military  force,  for  the  subju- 
gation of  others.  The  only  alternative,  then,  which  presents 
itself,  is  believed  to  be  not  more  congenial  to  the  feelings  than 
to  the  best  interests  of  the  Union, 

Government  by  "affection"  as  the  only  alternative  to 
a  government  by  "force  "  had  been  expressly  repudiated 


American  Administration,  1 787-1902    541 

by  the  Continental  Congress  in  its  resolution  of  April  14, 
1778,  concerning  the  proposition  of  the  British  Govern- 
ment to  give  the  Colonies  a  government  founded  on 
"affection,"  at  the  same  time  that  it  claimed  that  the 
Imperial  power  of  the  British  State  was  unconditional 
and  unlimited. 

They  saw,  in  an  instant,  that  a  government  by  affection 
was  a  government  by  force  in  disguise,  and  that  the  only 
permissible  alternative  to  government  by  force  was,  as 
Jefferson  well  said,  in  his  letter  of  September  13,  1786, 
to  M,  Soul^s,  a  government  by  "compact,"  which  com- 
pact, as  Gouverneur  Morris  showed  in  his  Observations  on 
the  American  Revolution ,  might  be  express  or  implied, 
written  or  unwritten.  More  than  that,  the  Continental 
Congress  had  refused  to  admit  that  government  by  force, 
in  time  of  peace,  whether  undisguised  or  disguised  in  the 
form  of  government  by  affection,  was  permissible  at  all, 
and  had  claimed  that  every  possible  relationship  between 
a  State  and  its  external  communities  was  a  relationship 
between  itself  as  a  State  and  them  as  States,  founded  on 
a  compact  between  them. 

In  an  Act  passed  three  days  previous  to  the  Act  pro- 
viding for  the  government  of  Louisiana,  relating  to  the 
Bank  of  the  United  States,  it  was  provided : 

That  the  President  and  Directors  of  the  Bank  of  the  United 
States  shall  be  and  they  are  hereby  authorized  to  establish 
offices  of  discount  in  any  part  of  the  territories  or  dependencies 
of  the  United  States. 

At  the  same  session  Congress  passed  an  Act,  relating 
to  the  exemplification  and  proof  of  public  records,  which 
extended  the  previous  Act  on  this  subject  to 

the  Public  Acts  ...  of  the  respective  territories  of  the 
United  States  and  countries  subject  to  the  jurisdiction  of  the 
United  States. 


542  The  Administration  of  Dependencies 

In  the  year  1808,  in  the  case  of  Rose  v.  Himely,  4 
Cranch,  241,  where  the  question  was  whether  a  judgment 
of  condemnation  of  a  vessel  by  the  Colonial  Court  of  San 
Domingo  for  violation  of  regulations  made  by  Napoleon, 
as  First  Consul  of  France,  was  valid,  though  the  Court 
was  not  a  Court  of  admiralty  jurisdiction,  it  was  held  that 
the  condemnation  was  valid,  because  in  violation  of  a  law 
which  was  a  municipal  regulation  of  France.  The  island 
of  San  Domingo  was  treated  exactly  as  if  it  were  an  in- 
tegral part  of  France,  and  the  European  view,  that  all  the 
rights  of  dependencies  were  derived  from  the  will  and 
grant  of  the  Imperial  State,  was  adopted  by  the  Supreme 
Court. 

In  1810,  the  Supreme  Court,  speaking  by  Mr.  Chief 
Justice  Marshall,  in  a  case  involving  the  question  of  the 
jurisdiction  of  the  courts  in  the  Territory  of  Orleans 
{Sere  v.  Pitot,  6  Cranch,  366),  gave  countenance  to  the 
British  and  European  theory  of  the  administration  of  de- 
pendencies by  saying : 

The  power  of  governing  and  legislating  for  a  Territory  is 
the  inevitable  consequence  of  the  right  to  acquire  and  hold 
territory.  Could  this  position  be  contested,  the  Constitution 
of  the  United  States  declares  that  "  Congress  shall  have  power 
to  dispose  of  and  make  all  needful  rules  and  regulations  re- 
specting the  territory  or  other  property  belonging  to  the  United 
States."  Accordingly  we  find  Congress  possessing  and  exer- 
cising the  absolute  and  undisputed  power  of  governing  and 
legislating  for  the  Territory  of  Orleans.  Congress  has  given 
them  a  Legislative,  an  Executive,  and  a  Judiciary,  with  such 
powers  as  it  has  been  their  will  to  assign  to  those  departments 
generally. 

In  the  year  1820,  the  question  of  the  relationship  be- 
tween the  United  States  and  its  external  communities 
had  incidentally  to  be  considered  by  the  Supreme  Court, 
in  the  case  of  Loughborough  v.  Blake,  5  Wheaton,  317, 


American  Administration,  1 780-1 902    543 

which  was  brought  to  test  the  validity  of  the  imposition 
of  direct  taxes,  by  Congress,  on  the  inhabitants  of  the 
District  of  Columbia.  The  claim  was  made  by  counsel, 
on  the  argument,  in  behalf  of  the  inhabitants  of  the  Dis- 
trict, that  such  taxation  was  taxation  without  representa- 
tion and  hence  contrary  to  the  fundamental  principles 
upon  which  the  government  of  the  United  States  was 
founded.  The  Court  differentiated  the  case  of  the  Dis- 
trict of  Columbia  and  the  regions  dependent  on  the 
American  Union,  on  the  North  American  continent  and 
immediately  adjacent  to  the  Union,  colonized  or  ex- 
pected to  be  colonized  from  the  population  of  the  Union, 
and  manifestly  destined  for  admission  into  the  Union  as 
States,  from  all  regions,  remote  or  insular,  or  inhabited 
by  populations  of  diverse  race  and  civilization,  and  held 
that  dependencies  of  the  former  class  (called  "Terri- 
tories") were  subject  to  the  mere  will  of  Congress 
"under  the  restrictions  of  our  Constitution,"  and  that 
they  had  no  right  of  representation  in  Congress.  The 
language  of  the  Court  was : 

The  difference  between  requiring  a  continent  with  an  im- 
mense population  to  submit  to  be  taxed  by  a  Government 
having  no  common  interest  with  it,  separated  from  it  by  a  vast 
ocean,  restrained  by  no  principle  of  apportionment,  and  as- 
sociated with  it  by  no  common  feelings,  and  permitting  the 
representatives  of  the  American  people,  under  the  restrictions 
of  our  Constitution,  to  tax  a  part  of  the  society  which  is  either 
in  a  state  of  infancy  advancing  to  manhood,  looking  forward 
to  complete  equality  as  soon  as  that  state  of  manhood  shall  be 
attained,  as  is  the  case  of  Territories,  or  which  has  voluntarily 
relinquished  the  right  of  representation  and  has  adopted  the 
whole  body  of  Congress  for  its  legitimate  Government  (like  the 
District  of  Columbia),  is  too  obvious  not  to  present  itself  to 
the  minds  of  all. 

By  the  decision,  the  government  of  the  Territories  by 


544  The  Administration  of  Dependencies 

the  Congress  of  the  United  States,  which  was,  as  to 
them,  a  mere  oligarchy  of  foreigners,  acting  according  to 
its  mere  will  except  so  far  as  the  people  of  the  American 
Union  (also  foreigners)  had  restrained  them  from  so  doing 
by  the  terms  of  the  written  Constitution  of  the  United 
States,  was  justified  by  the  Court  on  two  grounds:  first, 
that  this  foreign  oligarchy  was  "under  the  restrictions  of 
our  Constitution  "  concerning  the  extent  of  its  powers 
(though  under  none  in  regard  to  the  manner  of  exercising 
them) ;  and  second,  because  the  Territories  were  in  a  state 
of  weakness  which  prevented  them  from  making  any  suc- 
cessful opposition  to  what  this  foreign  oligarchy  might 
do,  and  the  foreign  oligarchy  would  be  likely  to  give  them 
a  government  by  affection  instead  of  a  government  by 
force  because  the  people  of  the  United  States  and  the 
people  of  the  Territories  were  "a  part  of  the  same  so- 
ciety "  and  were  "associated  by  common  feelings." 
The  government  of  the  District  of  Columbia  by  the 
Congress  of  the  United  States  as  an  oligarchy  of  for- 
eigners, acting  according  to  its  mere  will,  under  the 
restrictions  of  the  Constitution,  was  justified  because  the 
District  had  "voluntarily  relinquished  the  right  of  repre- 
sentation and  adopted  the  whole  body  of  Congress  for  its 
legitimate  Government." 

In  further  justification  of  its  decision,  the  Court  dis- 
tinctly adopted  the  British  view,  that  the  Territories  and 
the  District  of  Columbia  were  mere  external  municipali- 
ties of  the  United  States,  so  that  they  were  all  compre- 
hended in  one  political  organism,  or  State,  called  "the 
United  States  of  America."  Speaking  of  the  name  "the 
United  States  of  America,"  the  Court  said: 

Does  this  term  designate  the  whole  or  any  particular  part  of 
the  American  Empire?  Certainly  this  question  can  admit  of 
but  one  answer.  It  is  the  name  given  to  our  great  Republic, 
which  is  composed  of  States  and  Territories.     The  District  of 


American  Administration,  1 787-1902    545 

Columbia,  or  the  territory  west  of  the  Missouri,  is  not  less 
within  the  United  States  than  Maryland  or  Pennsylvania. 

The  Court  thus  considered  that  the  whole  political 
organism,  composed  of  the  American  States  and  the 
American  Territories,  was  both  an  American  Republic — 
that  is,  an  American  State — and  an  American  Empire. 
They  considered  the  American  Empire  to  be  a  Unitary 
State,  in  which  the  Federal  State,  composed  of  the  States 
represented  in  Congress — the  American  Union, — was  not 
only  the  Imperial  State  of  the  Territories,  as  its  depen- 
dencies, but  the  Supreme  Legislature,  the  Supreme  Ex- 
ecutive and  the  Supreme  Judiciary  of  the  Territories  as 
mere  municipalities.  This  Imperial  State  was  regarded 
as  having  power  to  make  laws  and  statutes  of  sufficient 
validity  to  bind  the  Territories  and  their  inhabitants  in 
all  cases  whatsoever,  subject  to  "the  restrictions  of  our 
Constitution."  What  these  restrictions  were  the  Court 
did  not  specify.  The  principles  of  the  British  Empire  were 
applied  to  America,  with  some  indefinite  modifications. 

The  Court,  while  giving  the  preference  to  this  concep- 
tion of  the  American  Empire,  did  not  base  its  decision 
wholly  upon  this  conception.  Recognizing  that  the 
American  Empire  was  capable  of  being  conceived  of  as 
a  federal  organism  so  that  the  powers  of  Congress  in  the 
Territories  were  powers  of  disposition  only,  they  held 
that  the  levying  of  the  taxes  in  the  particular  case  was, 
since  they  were  uniform  with  those  levied  in  the  States 
of  the  Union,  a  "needful  rule  and  regulation  respecting  " 
the  District  of  Columbia,  saying: 

It  is  not  less  necessary,  on  the  principles  of  our  Constitution, 
that  uniformity  in  the  imposition  of  imposts,  duties,  and  ex- 
cises should  be  observed  in  the  [States]  than  in  the  [District 
of  Columbia  and  the  Territories]. 

Had   the   decision    made   a   distinction    between    the 
35 


546  The  Administration  of  Dependencies 

District  of  Columbia  and  the  Territories  and  regarded  the 
power  over  the  District  as  a  power  of  limited  legislation, 
— a  power  in  Congress  to  act  according  to  its  mere  will 
"subject  to  the  restrictions  of  our  Constitution," — and  the 
power  over  the  Territories  and  other  dependencies  as  a 
power  of  conditional  legislation — a  power  of  disposition, — 
no  fault  could  be  found  with  it.  The  District  of  Columbia 
is  undoubtedly  "within  the  United  States,"  since  by  the 
Constitution  the  Congress  is  made  its  Supreme  Legis- 
lature. The  Territories  are  however  expressly  described 
by  the  Constitution  as  external  States  "belonging  to" 
the  United  States,  and  the  American  Union — "the 
United  States  " — is  given  the  Imperial  power  to  dispose 
of  them  as  their  Sovereign  and  to  enact  executive 
legislation. 

In  the  case  of  Johnson  v.  Mcintosh,  8  Wheaton,  589, 
in  the  year  1823,  the  question  was  concerning  the  validity 
of  grants  of  lands  in  the  dependent  regions  external  to 
the  Union,  made  by  Indians  or  by  Indian  tribes  to  indi- 
viduals in  the  years  1773  and  1775,  while  the  Indian  tribes 
were  under  the  protection  and  disposition  of  the  British 
Crown,  and  while  the  British  Crown  claimed  the  right  of 
pre-emption  of  all  Indian  lands.  It  was  held  that  the  local 
circumstances  and  conditions  of  the  Indian  tribes  were 
such  that  they  justified  the  American  Union  in  refusing 
to  recognize  the  grants  as  valid,  although  it  was  admitted 
that,  under  ordinary  circumstances,  the  private  rights  of 
individuals  in  the  dependencies  were  inviolable  by  the 
Central  Government  of  the  Union  to  the  same  extent  as 
similar  rights  of  inhabitants  of  the  Union.  The  argu- 
ment of  the  opinion  was  that  the  local  circumstances  and 
conditions  of  the  Indians  required  their  complete  isolation 
from  the  whites,  under  their  own  government,  and  a  re- 
striction of  the  region  occupied  by  them,  which  could 
be  accomplished  in  an  orderly  and  peaceful  manner  only 
if  all  grants  of  land  to  individual  white  men  were  for- 


American  Administration,  1 787-1902    547 

bidden  and  it  was  required  that  the  Indians  should  sell 
only  to  the  Imperial  State.  The  Court,  speaking  by  Mr. 
Chief  Justice  Marshall,  said : 

The  British  Government,  which  was  then  our  Government, 
and  whose  rights  have  passed  to  the  United  States,  asserted  a 
title  to  all  the  lands  occupied  by  Indians,  within  the  chartered 
limits  of  the  British  Colonies,  It  asserted  also  a  limited 
sovereignty  over  them,  and  the  exclusive  right  of  extinguish- 
ing the  title  which  occupancy  gave  to  them.  These  claims 
have  been  maintained  and  established  as  far  west  as  the  Mis- 
sissippi, by  the  sword.  The  title  to  a  vast  portion  of  the  lands 
we  now  hold  originates  in  them.  It  is  not  for  the  courts  of 
this  country  to  question  the  validity  of  this  title  or  to  sustain 
one  which  is  incompatible  with  it. 

Although  we  do  not  mean  to  engage  in  the  defence  of  those 
principles  which  Europeans  have  applied  to  Indian  title,  they 
may,  we  think,  find  some  excuse,  if  not  justification,  in  the 
character  and  habits  of  the  people  whose  rights  have  been 
wrested  from  them. 

The  title  by  conquest  is  acquired  and  maintained  by  force. 
The  conqueror  prescribes  its  limits.  Humanity,  however, 
acting  on  public  opinion,  has  established,  as  a  general  rule, 
that  the  conquered  shall  not  be  wantonly  oppressed,  and  that 
their  condition  shall  remain  as  eligible  as  is  compatible  with 
the  objects  of  the  conquest.  Most  usually,  they  are  incor- 
porated with  the  victorious  nation,  and  become  subjects  or 
citizens  of  the  government  with  which  they  are  connected. 
The  new  and  old  members  of  the  society  mingle  with  each 
other;  the  distinction  between  them  is  gradually  lost,  and  they 
make  one  people.  Where  this  incorporation  is  practicable, 
humanity  demands,  and  a  wise  policy  requires,  that  the  rights 
of  the  conquered  to  property  should  remain  unimpaired;  that 
the  new  subjects  should  be  governed  as  equitably  as  the  old, 
and  that  confidence  in  their  security  should  gradually  banish 
the  painful  sense  of  being  separated  from  their  ancient  con- 
nections and  united  by  force  to  strangers. 

When  the  conquest  is  complete,  and  the  conquered  inhabi- 


54^  The  Administration  of  Dependencies 

tants  can  be  blended  with  the  conquerors,  or  safely  governed 
as  a  distinct  people,  public  opinion,  which  not  even  the  con- 
queror can  disregard,  imposes  these  restraints  upon  him;  and 
he  cannot  neglect  them  without  injury  to  his  fame  and  hazard 
to  his  power. 

But  the  tribes  of  Indians  inhabiting  this  country  were  fierce 
savages,  whose  occupation  was  war,  and  whose  subsistence 
was  drawn  chiefly  from  the  forest.  To  leave  them  in  posses- 
sion of  their  country  was  to  leave  the  country  a  wilderness ; 
to  govern  them  as  a  distinct  people  was  impossible,  because 
they  were  as  brave  and  high-spirited  as  they  were  fierce,  and 
were  ready  to  repel  by  arms  every  attempt  on  their  inde- 
pendence. 

What  was  the  inevitable  consequence  of  this  state  of  things? 
The  Europeans  were  under  the  necessity  either  of  abandoning 
the  country  and  relinquishing  their  pompous  claims  to  it,  or 
"of  enforcing  those  claims  by  the  sword  and  by  the  adoption 
of  principles  adapted  to  the  condition  of  a  people  with  whom 
it  was  impossible  to  mix  and  who  could  not  be  governed  as  a 
distinct  society,  or  of  remaining  in  their  neighborhood  and 
exposing  themselves  and  their  families  to  the  perpetual  hazard 
of  being  massacred. 

Frequent  and  bloody  wars,  in  which  the  whites  were  not 
always  the  aggressors,  unavoidably  ensued.  European  policy, 
numbers,  and  skill  prevailed.  As  the  white  population  ad- 
vanced, that  of  the  Indians  necessarily  receded.  The  country 
in  the  immediate  neighborhood  of  agriculturists  became  unfit 
for  them.  The  game  fled  into  thicker  and  more  unbroken 
forests,  and  the  Indians  followed.  The  soil,  to  which  the 
Crown  originally  claimed  title,  being  no  longer  occupied  by 
its  ancient  inhabitants,  was  parcelled  out  according  to  the  will 
of  the  sovereign  power,  and  taken  possession  of  by  persons 
who  claimed  immediately  from  the  Crown,  or  mediately, 
through  its  grantees  or  deputies. 

That  law  which  regulates,  and  ought  to  regulate  in  general, 
the  relations  between  the  conqueror  and  conquered,  was  in- 
capable of  application  to  a  people  und^er  such  circumstances. 
The  resort  to  some  new  and  different  rule,  better  adapted  to 


American  Administration,  1787- 1902    549 

the  actual  state  of  things,  was  unavoidable.  Every  rule  which 
can  be  suggested  will  be  found  to  be  attended  with  great 
difficulty. 

However  extravagant  the  pretension  of  converting  the  dis- 
covery of  an  inhabited  country  into  conquest  may  appear,  if 
the  principle  has  been  asserted  in  the  first  instance  and  after- 
wards sustained;  if  a  country  has  been  acquired  and  held 
under  it;  if  the  property  of  the  great  mass  of  the  community 
originates  in  it,  it  becomes  the  law  of  the  land  and  cannot  be 
questioned.  So,  too,  with  respect  to  the  concomitant  prin- 
ciple, that  the  Indian  inhabitants  are  to  be  considered  merely 
as  occupants,  to  be  protected,  indeed,  while  in  peace,  in  the 
possession  of  their  lands,  but  to  be  deemed  incapable  of  trans- 
ferring the  absolute  title  to  others.  However  this  restriction 
may  be  opposed  to  natural  right,  and  to  the  usages  of  civilized 
nations,  yet,  if  it  be  indispensable  to  that  system  under  which 
the  country  has  been  settled,  and  be  adapted  to  the  actual 
condition  of  the  two  peoples,  it  may,  perhaps,  be  supported 
by  reason,  and  certainly  cannot  be  rejected  by  courts  of 
justice. 

This  case  recognized  a  third  class  of  dependencies — 
those  adjacent  to  the  American  Union,  but  manifestly 
destined  never  to  be  incorporated  as  States  into  the 
Union  and  unfitted  for  free  commerce  and  intercourse 
with  the  Union.  Such  dependencies  v^ere  to  be  admin- 
istered not  "under  the  restrictions  of  our  Constitution," 
not  even  by  "  the  rule  which  regulates  or  ought  to  regu- 
late, in  general,  the  relations  between  the  conqueror  and 
the  conquered,"  but  by  "some  new  and  different  rule, 
better  adapted  to  the  actual  state  of  things." 

The  right  of  pre-emption  of  soil  claimed  by  a  State 
against  uncivilized  dependencies  is  a  right  growing  out  of 
the  natural  right  of  a  State  to  isolate  its  dependencies 
from  itself  to  the  extent  necessary  for  the  good  of  the 
whole  Empire  composed  of  itself  and  them,  and  to  use 
all  reasonable  and  proper  means  to  accomplish  this  end. 


550  The  Administration  of  Dependencies 

So  far  as  the  case  of  Johnson  v.  Mcintosh  justifies  the 
isolation  of  dependent  uncivilized  tribes  under  their  tribal 
government,  it  is  undoubtedly  in  accord  with  the  general 
public  law  of  the  civilized  world.  The  Constitution, 
laws,  and  customs  of  the  Imperial  State  form  a  part  of 
the  Constitution  of  the  Empire  only  so  far  as  they  are 
applicable,  considering  the  local  circumstances  and  con- 
ditions of  the  dependencies;  but  these  local  circum- 
stances and  conditions  may  be  so  diametrically  opposite 
from  those  which  exist  in  the  Imperial  State  as  to  require 
the  temporary  or  partial  suspension  of  principles  which, 
in  the  Imperial  State,  are  regarded  as  so  fundamental  as 
to  be  almost  axiomatic. 

In  the  case  of  American  Insurance  Company  v.  Canter, 
I  Peters,  449,  decided  in  1828,  it  became  necessary  for 
the  Supreme  Court  to  remove  the  misapprehension  which 
had  arisen  from  its  decision  in  the  case  of  Loughborough 
v.  Blake.  Because  the  Supreme  Court  had  held  that  the 
whole  political  organism  consisting  of  the  American 
States  and  Territories,  was,  in  one  aspect,  a  State,  it 
argued  that  it  was  a  Federal  State,  of  which  the  Terri- 
tories were  Member-States,  though  without  representa- 
tion in  the  Central  Government,  and  not  an  Empire. 
Consequently  it  was  claimed  that  all  courts  in  the  Terri- 
tories were  United  States  Courts,  of  the  same  kind  as 
those  which  the  Congress  was,  by  the  Constitution, 
authorized  to  establish  in  the  States.  If  so,  as  the  juris- 
diction of  these  courts  was  established  by  the  Constitu- 
tion, it  was  argued  that  every  court  in  the  Territories 
had  the  jurisdiction  of  a  United  States  Court.  This  re- 
quired the  Supreme  Court  to  decide  whether  the  political 
organism  composed  of  the  American  Union  and  the 
Territories  was  a  Federal  State  or  a  Federal  Empire. 
The  Court  decided  that  it  was  not  a  Federal  State.  The 
courts  in  the  Territories,  they  said,  were  not  United 
States  Courts,  though  the  Congress  might,  if  it  saw  fit. 


American  Administration,  1 787-1902    551 

establish  courts  in  the  Territories  which  would  have  the 
same  jurisdiction  and  be  related  in  the  same  way  to  the 
Territories  as  the  United  States  Courts  in  the  States  were 
related  to  the  States.  They  held  that  Congress  might 
establish  such  courts  in  the  Territories  as  it  saw  fit,  with- 
out reference  to  the  provisions  of  the  Constitution  relat- 
ing to  the  courts  of  the  United  States,  and  might  confer 
upon  them  any  kind  of  jurisdiction  it  thought  proper. 

In  the  opinion  of  the  Supreme  Court,  delivered  by 
Chief  Justice  Marshall,  it  was  said: 

[The  inhabitants  of  Florida]  do  not  .  .  .  participate  in 
political  power;  they  do  not  share  in  the  government  [of  the 
United  States]  till  Florida  shall  become  a  State.  In  the  mean- 
time, Florida  continues  to  be  a  Territory  of  the  United  States, 
governed  by  virtue  of  that  clause  in  the  Constitution  which 
empowers  Congress  "to  make  all  needful  rules  and  regulations 
respecting  the  territory  or  other  property  belonging  to  the 
United  States." 

Perhaps  the  power  of  governing  a  Territory  belonging  to  the 
United  States  which  has  not,  by  becoming  a  State,  acquired 
the  means  of  self-government,  may  result  necessarily  from  the 
facts  that  it  is  not  within  the  jurisdiction  of  any  particular 
State  and  is  within  the  jurisdiction  of  the  United  States.  The 
right  to  govern  may  be  the  inevitable  consequence  of  the  right 
to  acquire  territory.  Whichever  may  be  the  source  whence 
the  power  is  derived,  the  possession  of  it  is  unquestioned. 

These  courts,  then,  are  not  Constitutional  courts,  in  which 
the  judicial  power  conferred  by  the  Constitution  on  the  Gen- 
eral Government  can  be  deposited.  They  are  Legislative 
courts,  created  in  virtue  of  the  general  right  of  Sovereignty 
which  exists  in  the  Government,  or  in  virtue  of  that  clause 
which  enables  Congress  to  make  all  needful  rules  and  regula- 
tions respecting  the  territory  belonging  to  the  United  States. 
The  jurisdiction  with  which  they  are  invested  is  not  a  part  of 
that  judicial  power  which  is  defined  in  the  third  Article  of  the 


552  The  Administration  of  Dependencies 

Constitution,  but  is  conferred  by  Congress,  in  the  execution 
of  those  general  powers  which  that  body  possesses  over  the 
Territories  of  the  United  States.  Although  admiralty  juris- 
diction can  be  exercised  in  the  States  in  those  courts  only 
which  are  established  in  pursuance  of  the  third  Article  of  the 
Constitution,  the  same  limitation  does  not  extend  to  the  Terri- 
tories. In  legislating  for  them,  Congress  exercises  the  com- 
bined powers  of  the  General  and  of  a  State  Government. 

Prior  to  1850,  the  usual  provision  relating  to  the  power 
of  the  Legislatures  of  the  Territories  was : 

The  legislative  powers  shall  extend  to  all  the  rightful  sub- 
jects of  legislation ;  but  no  law  shall  be  valid  which  is  incon- 
sistent with  the  Constitution  and  laws  of  the  United  States. 
The  Governor  shall  publish  throughout  the  said  Territory  all 
the  laws  which  shall  be  made,  and  shall  from  time  to  time 
report  the  same  to  the  President  of  the  United  States,  to  be 
laid  before  Congress;  which,  if  disapproved  by  Congress, 
shall  thenceforth  be  of  no  force. 

This  was  the  exact  language  used  in  the  Act  of  March 
26,  1804,  establishing  a  Temporary  Government  for 
Louisiana.  These  same  words  were  used  to  describe 
the  power  of  territorial  legislation  in  the  Act  of  Congress 
of  March  30,  1822,  establishing  a  Territorial  Government 
in  Florida.  In  the  Act  of  April  20,  1836,  establishing  a 
Territorial  Government  in  Wisconsin,  and  in  the  Act  of 
June  12,  1838,  establishing  a  Territorial  Government  in 
Iowa,  in  the  Act  of  August  14,  1848,  establishing  a  Terri- 
torial Government  in  Oregon,  and  in  the  Act  of  March 
3,  1849,  establishing  a  Territorial  Government  in  Minne- 
sota, the  same  formula  was  used,  except  that  the  words 
"but  no  law  shall  be  valid  which  is  inconsistent  with  the 
Constitution  and  laws  of  the  United  States"  were 
omitted.  The  omission  was,  however,  supplied  by  other 
provisions  in  the  Acts,  placing  these  Territories  under 


American  Administration,  1 787-1 902    553 

the  regime  of  the  Ordinance  for  the  Government  of  the 
Northwest  Territory  (according  to  which,  they  were 
"subject  to  the  Articles  of  Confederation  and  to  such 
alterations  therein  as  shall  be  constitutionally  made,  and 
to  all  the  Acts  and  Ordinances  of  the  United  States  in 
Congress  assembled,  conformable  thereto"),  and  extend- 
ing over  the  Territory  the  laws  of  the  United  States, 
"so  far  as  the  same,  or  any  provision  thereof,  may  be 
applicable."  Mississippi,  Indiana,  Michigan,  Illinois, 
and  Alabama  were,  by  the  terms  of  the  cession,  under 
the  regime  applicable  to  the  Northwest  Territory. 

There  can  be  no  doubt,  therefore,  that,  up  to  March  3, 
1849,  t^^  undisputed  theory  prevailed  throughout  the 
American  Union  and  its  dependencies  that  it  and  its  de- 
pendencies constituted  an  American  Empire,  under  an 
unwritten  and  "flexible"  constitution,  of  which  the  pro- 
visions of  the  Constitution  and  laws  of  the  American 
Union  which  were  applicable  to  the  respective  depen- 
dencies, considering  their  local  conditions  and  circum- 
stances, formed  a  part. 

In  1849,  Calhoun  revived  the  theory  which  had  been 
repudiated  by  the  Supreme  Court  in  the  case  of  American 
Insurance  Company  v.  Canter,  that  the  Territories  were 
imperfect  Member-States  of  the  American  Union,  so 
that  the  Constitution  of  the  American  Union  was  in  force 
in  the  Territories  in  exactly  the  same  sense  that  it  was 
in  force  in  the  States.  Benton,  in  his  Historical  and 
Legal  Examination  of  the  Dred  Scott  Case,  published  in 
1857,  quotes  the  following  language  used  by  Calhoun  in 
the  Senate  in  support  of  his  proposition,  speaking  of  the 
treaty  with  Mexico,  ceding  New  Mexico  and  California: 

I  deny  that  the  laws  of  Mexico  can  have  the  effect  attributed 
to  them — that  of  keeping  slavery  out  of  New  Mexico  and 
California.  As  soon  as  the  treaty  between  the  two  countries 
is  ratified,  the  sovereignty  and  authority  of  Mexico  in  the  terri- 


554  The  Administration  of  Dependencies 

tory  acquired  by  it  becomes  extinct,  and  that  of  the  United 
States  is  substituted  in  its  place,  conveying  the  Constitution 
with  its  overriding  control  over  all  the  laws  and  institutions  of 
Mexico  inconsistent  with  it. 

The  distinction  between  Calhoun's  theory  and  the 
previous  theory  seems  to  be  this :  Calhoun  claimed  that 
the  Territories  were  to  be  treated  as  external  munici- 
palities, but  were  to  be  assimilated  as  closely  as  possible 
to  the  States  of  the  Union,  regardless  of  their  wishes  and 
regardless  of  their  local  conditions  and  circumstances. 
The  previous  theory  was  that  they  were  entitled  to  such 
a  regime  of  autonomy  and  statehood  as  would  have 
been  given  them  had  they  been  free  and  equal  States 
which  had  entered  into  a  compact  with  the  American 
Union,  made  on  a  basis  of  equality  and  in  which  full  ac- 
count was  taken  both  of  the  Constitution  of  the  United 
States  and  of  their  local  conditions  and  circumstances, 
by  which  they  had  voluntarily  entered  into  a  relationship 
of  permanent  dependency  on  the  Union.  Calhoun's 
theory  substituted  a  government  by  force  in  the  Terri- 
tories for  an  administration  of  them  based  on  compact. 

In  the  Organic  Act  of  New  Mexico  in  1850,  accepting 
the  cession  of  New  Mexico  by  the  State  of  Texas,  a 
section  was  inserted  providing : 

That  the  Constitution,  and  all  laws  of  the  United  States 
which  are  not  locally  inapplicable,  shall  have  the  same  force 
and  effect  within  the  said  Territory  of  New  Mexico  as  else- 
where within  the  United  States. 

This  same  provision  was  inserted  in  the  Organic  Acts 
of  Colorado  and  Dakota  (1861),  of  Arizona  and  Idaho 
(1863),  of  Montana  (1864),  of  Wyoming  (1868),  and  of 
Oklahoma  (1890). 

The  Organic  Act  of  Utah  of  1850,  however,  contained 
the  following  provision : 


American  Administration,  1 787-1 902    555 

That  the  Constitution  and  laws  of  the  United  States  are 
hereby  extended  over  and  declared  to  be  in  force  in  said 
Territory  of  Utah,  so  far  as  the  same,  or  any  provision  thereof, 
may  be  applicable. 

Between  the  New  Mexico  Act  and  the  Utah  Act,  there 
was  the  most  fundamental  difference.  In  the  former, 
the  Constitution  was  declared  to  be  literally  in  force  in 
the  Territory;  in  the  latter,  to  be  in  force  only  "so  far 
as  the  same,  or  any  provision  thereof,  may  be  applicable." 
In  the  former,  it  was  declared  to  be  a  written  Constitu- 
tion imposed  upon  the  Territory  without  its  consent ;  in 
the  latter,  it  was  declared  to  be  the  basis  of  an  unwritten 
Constitution  of  an  Empire  of  which  the  Territory  formed 
a  part. 

The  plain  purpose  of  the  above-quoted  provision  of  the 
New  Mexico  Act,  which  was  in  exact  conformity  with 
Calhoun's  theory,  was,  of  course,  to  strengthen  the  claim 
of  the  Southern  States  that  Congress  had  power  to  im- 
pose slavery  upon  the  Territories.  If  the  Constitution 
of  the  United  States  was  in  force  in  the  dependencies 
only  so  far  as  its  provisions  were  applicable,  considering 
the  local  circumstances  and  conditions,  and  the  Local 
Governments  of  the  Territories  had  power  to  make  all 
laws  not  inconsistent  with  the  Constitution  and  laws  of 
the  United  States,  it  was  possible  to  claim  that  Con- 
gresSy  in  exercising  the  power  to  make  municipal  regu- 
lations for  the  Territories,  acted  in  substitution  for 
the  Local  Government,  and  that  its  powers  were  only 
such  as  the  Local  Government  would  exercise  if  it 
were  the  Government  of  a  free  and  equal  State  in  a 
voluntary  relationship  of  permanent  dependency  on 
the  Union,  in  which  case  it  was  exceedingly  doubtful 
whether  Congress  could  impose  slavery  upon  any  of 
the  Territories,  and  it  was  certain  that  it  could  not 
impose  it  upon  all  of  them.     It  was  for  the  interest  of 


55^  The  Administration  of  Dependencies 

the  Southern  States,  therefore,  to  have  the  Territories 
treated  as  nearly  like  the  States  of  the  Union  as  possible, 
and  then  to  have  Congress  regard  itself  as  a  substitute 
for  a  State  Government.  The  result  was  to  require  Con- 
gress to  exercise  its  powers  in  the  Territories  "subject  to 
the  restrictions  of  the  Constitution,"  one  of  which  re- 
strictions was,  as  the  slaveholding  States  claimed,  that 
Congress  should  not  only  not  deprive  persons  of  their 
property  in  slaves,  but  should  recognize  and  protect 
this  alleged  right  of  property. 

Beginning  with  the  Act  of  September  9,  1850,  estab- 
lishing a  Territorial  Government  in  Utah,  and  until  the 
Act  of  May  2,  1890,  establishing  a  Temporary  Govern- 
ment in  Oklahoma,  every  Act  of  Congress  establishing  a 
Territorial  Government,  with  one  exception,  provided 
that  the  legislative  power  of  the  Territory  should  "ex- 
tend to  all  rightful  subjects  of  legislation,  consistent  with 
the  Constitution  of  the  United  States."  The  one  excep- 
tion was  the  Act  of  March  2,  1853,  establishing  a  Ter- 
ritorial Government  in  Washington  Territory,  which 
followed  the  old  formula — that  the  Territorial  legislation 
should  be  "not  inconsistent  with"  the  Constitution  and 
laws  of  the  United  States.  Since  1890,  the  old  formula 
has  been  followed. 

In  the  Dred  Scott  Case  {Scott  v.  Sandford,  19  Howard, 
393)  decided  in  1857,  the  relationship  between  the  Con- 
stitution of  the  United  States  and  the  Constitution  of 
the  American  Empire  was  again  examined,  and  two  dis- 
tinct views  developed :  the  first,  that  all  the  restrictions 
(both  express  and  implied)  imposed  by  the  Constitution 
upon  either  the  National  Government  or  the  State  Gov- 
ernment were  literally  in  force  in  the  dependencies;  and 
second,  that  only  the  express  prohibitions  of  the  Consti- 
tution were  in  force.  It  was  not  suggested  by  any  of  the 
Judges  that  the  Constitution  was  in  force  "so  far  as  the 
same,  or  any  provision  therof,  might  be  applicable." 


American  Administration,  1787- 1902    557 

The  whole  Court  attempted  to  treat  the  Constitution 
of  the  United  States  as  if  it  were  actually  the  written 
Constitution  of  the  Empire,  instead  of  being  the  basis  of 
the  unwritten  Constitution  of  the  Empire.  Realizing 
that  it  was  impossible,  in  the  nature  of  things,  to  treat 
it  literally  and  totally  as  the  Constitution  of  the  Empire, 
they  attempted  to  take  a  part  of  it  and  declare  that  to 
be  the  written  Constitution  of  the  Empire. 

Mr.  Chief  Justice  Taney,  in  that  case,  attempted  to 
read  out  of  the  Constitution  the  clause  giving  Congress 
the  power  "to  dispose  of  and  make  all  needful  rules  and 
regulations  respecting"  the  dependencies  by  confining 
it  entirely  to  the  Northwest  Territory,  and  others  of 
the  Judges  attempted  to  destroy  its  effect  by  interpret- 
ing it  as  having  reference  only  to  dispositions  of  the 
primary  title  to  the  soil  in  the  dependencies,  but  the 
majority  of  the  Court  in  that  case  did  not  adopt  either 
of  these  constructions,  and  there  is  nothing  to  prevent 
the  Supreme  Court,  at  the  present  time,  from  giving  to 
the  clause  its  most  universal  meaning. 

From  the  time  of  the  decision  of  the  Dred  Scott  Case 
until  the  present  time,  the  question  of  the  relationship 
between  the  Constitution  of  the  United  States  and  the 
Constitution  of  the  American  Empire  has  been  under 
consideration  by  the  Supreme  Court.  That  the  Consti- 
tution of  the  United  States  and  the  Constitution  of  the 
American  Empire  are  not,  and  cannot  be  one  and  the 
same  thing,  is  evident  from  the  most  casual  inspection  of 
the  Constitution  of  the  United  States,  which  contains 
numerous  provisions  which  cannot  by  any  possibility  be 
regarded  as  applicable  to  the  Territories  or  other  depen- 
dencies of  the  United  States.  There  is  in  this  Constitu- 
tion hardly  a  single  provision  which  any  judicious  person 
would  be  willing  to  say  was  applicable  to  every  depen- 
dent community,  whatever  might  be  the  character  of  its 
civilization  and  whatever  might  be  its  local  conditions 


55^  The  Administration  of  Dependencies 

and  circumstances.  Yet  that  there  must  be  some  rela- 
tionship between  the  Constitution  of  the  Imperial  State 
and  the  Constitution  of  the  Empire,  whether  the  Consti- 
tution of  the  Imperial  State  be  written  or  unwritten,  and 
whether  the  Imperial  State  be  unitary  or  federal  in  char- 
acter, is  a  proposition  which  hardly  any  judicious  person 
at  the  present  time  doubts. 

The  view  taken  by  the  Supreme  Court  in  the  Dred 
Scott  Case,  that  the  American  Union  had  unconditional 
and  unlimited  power  over  its  dependencies  "  subject  to 
the  restrictions  of  the  Constitution,"  was  followed  in  a 
long  course  of  decisions  until  the  year  1889. 

One  of  the  most  notable  cases  on  this  subject  during 
this  period  was  the  case  of  National  Bank  v.  County  of 
Yankton^  loi  U.  S.,  129,  decided  in  1879.  Mr.  Chief 
Justice  Waite,  delivering  the  unanimous  opinion  of  the 
Court,  upholding  the  power  of  Congress  to  disapprove 
and  annul  Territorial  legislation,  said : 

The  Territories  are  but  political  subdivisions  of  the  outlying 
dominion  of  the  United  States.  Their  relation  to  the  General 
Government  is  much  the  same  as  that  which  counties  bear  to 
the  respective  States,  and  Congress  may  legislate  for  them  as 
a  State  does  for  its  municipal  organizations.  The  organic 
law  of  a  Territory  takes  the  place  of  a  Constitution  as  a 
fundamental  law  of  the  Local  Government.  It  is  obligatory 
and  binds  the  Territorial  authorities;  but  Congress  is  su- 
preme, and  for  the  purposes  of  this  department  of  its  govern- 
mental authority  has  all  the  powers  of  the  people  of  the  United 
States,  except  such  as  have  been  expressly  or  by  implication 
reserved  in  the  prohibitions  of  the  Constitution. 

Congress  may  not  only  abrogate  laws  of  the  Territorial 
Legislature,  but  it  may  itself  legislate  directly  for  the  Local 
Government.  It  may  make  a  void  Act  of  the  Local  Legis- 
lature valid,  and  a  valid  Act  void.  In  other  words,  it  has 
full  and  complete  legislative  authority  over  the  people  of  the 
Territories  and  all  the  Departments  of  the  Territorial  Govern- 


American  Administration,  1787- 1902    559 

ments.     It  may  do  /or  the  Territories  what  the  people,  under 
the  Constitution  of  the  United  States,  may  do  for  the  States.'* 

As  further  illustrating  the  view  taken  by  the  Supreme 
Court  during  this  period,  there  may  be  quoted  the  fol- 
lowing language  of  the  Court  in  the  case  of  Murphy  v. 
Ramsey,  114  U.  S.,  15,  decided  in  1884,  which  involved 
the  question  of  the  power  of  Congress  to  disapprove  and 
annul  certain  legislation  of  the  Territory  of  Utah — the 
opinion  being  delivered  by  Mr.  Justice  Matthews: 

The  people  of  tKe  United  States,  as  sovereign  owners  of  the 
National  Territories,  have  supreme  power  over  them  and  their 
inhabitants.  In  the  exercise  of  this  sovereign  dominion,  they 
are  represented  by  the  Government  of  the  United  States,  to 
whom  all  the  powers  of  government  over  that  subject  have 
been  delegated,  subject  only  to  such  restrictions  as  are  ex- 
pressed in  the  Constitution,  or  are  necessarily  implied  in  its 
terms,  or  in  the  purposes  and  objects  of  the  power  itself;  for 
it  may  well  be  admitted  in  respect  to  this,  as  to  every  power 
of  society  over  its  members,  that  it  is  not  absolute  and  un- 
limited. But  in  ordaining  government  for  the  Territories  and 
the  people  who  inhabit  them,  all  the  discretion  which  belongs 
to  legislative  power  is  vested  in  Congress;  and  that  extends, 
beyond  all  controversy,  to  determining  by  law,  from  time  to 
time,  the  form  of  the  local  Government  of  a  particular  Terri- 
tory, and  the  qualification  of  those  who  shall  administer  it. 
It  rests  with  Congress  to  say  whether,  in  a  particular  case,  any 
of  the  people,  resident  in  the  Territory,  shall  participate  in 
the  election  of  its  officers  or  the  making  of  its  laws;  and  it 
may  therefore  take  from  them  any  right  of  suffrage  it  may  pre- 
viously have  conferred,  or  at  any  time  modify  or  abridge  it,  as 
it  may  deem  expedient. 

The  personal  and  civil  rights  of  the  inhabitants  of  the 
Territories  are  secured  to  them,  as  to  other  citizens,  by 
the  principles  of  constitutional  liberty  which  restrain  all  the 
agencies  of  government.  State  and  National;   their  political 


560  The  Administration  of  Dependencies 

rights  are  franchises  which  they  hold  as  privileges  in  the  legis- 
lative discretion  of  the  Congress  of  the  United  States. 

In  1889,  in  the  case  of  The  Mormon  Church  v.  The 
United  States,  136  U.  S.,  i,  the  Supreme  Court,  finding  it 
necessary,  in  the  interests  of  justice  and  good  government, 
to  justify  an  Act  of  Congress  confiscating  the  property  of 
the  Mormon  Church  in  the  Territory  of  Utah,  and  recog- 
nizing that  the  Act  could  not  be- sustained  if  the  express 
prohibitions  of  the  Bill  of  Rights  bound  Congress  in  its 
disposition  of  the  Territories,  announced  a  doctrine 
which  meant  nothing  else  than  that  the  American  Em- 
pire, consisting  of  the  American  Union  and  its  depen- 
dencies, was  under  an  unwritten  Constitution  of  which 
the  Constitution  of  the  United  States  was  the  basis. 
Speaking  by  Mr.  Justice  Bradley,  the  Court  said: 

Doubtless  Congress,  in  legislating  for  the  Territories,  would 
be  subject  to  those  fundamental  limitations  in  favor  of  per- 
sonal rights  which  are  formulated  in  the  Constitution  and  its 
amendments,  but  these  limitations  would  exist  rather  by  in- 
ference and  the  general  spirit  of  the  Constitution,  from  which 
Congress  derives  all  its  powers,  than  by  any  express  and 
direct  application  of  its  provisions. 

The  limitations  upon  the  power  thus  declared  are  at  the 
same  time  very  indefinite  and  very  extensive.  Accord- 
ing to  the  theory  of  this  opinion,  no  provision  whatever 
of  the  Constitution  protecting  the  personal  rights  of 
citizens  of  the  States  applies  expressly  and  directly  to 
the  power  of  the  American  Union  and  its  Central  Gov- 
ernment over  the  dependencies,  but  every  provision  of 
the  Constitution  in  favor  of  personal  rights  may  pos- 
sibly apply,  if  its  application  can  be  justified  "by  infer- 
ence and  the  general  spirit  of  the  Constitution."  A 
power  which  is  limited  by  inference  is  not  the  kind  of 
power  which   is  usually  conferred  on   a   representative 


American  Administration,  1 787-1902    561 

Legislature.  It  is  not  the  usual  function  of  a  Legisla- 
ture composed  of  necessarily  non-expert  delegates  to 
inquire  whether  the  circumstances  and  conditions  of 
communities  which  none  of  the  delegates  represent,  but 
to  which  the  powers  of  the  Legislature  extend,  are  the 
same  as  those  of  communities  represented,  and  from 
hence  to  "infer  "  that  express  limitations  upon  the  power 
of  the  Legislature  in  the  latter  are,  according  to  "the 
general  spirit  of  the  Constitution,"  applicable  in  the 
former.  If  a  representative  body  has,  in  fact,  as  a  part 
of  its  duties,  to  occupy  itself  with  such  "inferences,"  its 
duties  are  essentially  expert,  and  its  powers  of  legislation 
are  incidental  to  its  power  of  disposition.  It  is  acting 
under  an  unwritten  Constitution. 

In  the  case  of  McAllister  v.  TJie  United  States,  141 
U.  S.,  174,  which  involved  the  question  of  the  power  of 
Congress  over  the  Judges  of  Territorial  Courts  with  re- 
spect to  their  term  of  office,  suspension,  or  removal,  the 
Court,  speaking  by  Mr.  Justice  Harlan,  in  upholding  the 
power  of  Congress  in  this  respect,  said: 

How  far  the  exercise  of  [the  plenary  power  of  Congress 
over  the  Territories  of  the  United  States]  is  restrained  by  the 
essential  principles  upon  which  our  system  of  government 
rests,  and  which  are  embodied  in  the  Constitution,  we  need 
not  stop  to  inquire,  though  we  may  repeat  what  was  said  in 
Mormon  Church  v.  United  States,  136  U.  S.  i,  44:  "Doubt- 
less Congress,  in  legislating  for  the  Territories,  would  be  sub- 
ject to  those  fundamental  limitations  in  favor  of  personal  rights 
which  are  formulated  in  the  Constitution  and  its  amendments; 
but  these  limitations  would  exist  rather  by  inference  and  the 
general  spirit  of  the  Constitution  from  which  Congress  derives 
all  its  powers,  than  by  any  express  and  direct  application  of  its 
provisions." 

Here  was  another  enormous  step  forward.  The  power 
of  the  American  Union  over  its  dependencies  is,  it  was 

36 


562  The  Administration  of  Dependencies 

intimated,  "restrained  by  the  essential  principles  upon 
which  our  system  of  government  rests,  and  which  are 
embodied  in  the  Constitution."  This  was  a  very  differ- 
ent proposition,  indeed,  from  that  advanced  in  the  Mor- 
mon Church  case  —  that  the  power  was  restrained  by 
"those  fundamental  limitations  in  favor  of  personal 
rights  which  are  formulated  in  the  Constitution  and  its 
amendments."  Tlie  suggestion  plainly  is  that  every 
provision  of  the  Constitution  is,  in  principle  and  so 
far  as  applicable,  a  restriction  upon  the  power  of  the 
American  Union  and  its  Central  Government  over  the 
dependencies.  At  last  the  Supreme  Court  returned  to 
the'principle  of  the  old  English  Colonial  Charters — that 
all  governmental  action  relating  to  the  dependencies 
should  "not  be  repugnant  to,  but  agreeable,  as  nearly  as 
may  be,  to  the  Constitution,  laws  and  customs  "  of  the 
Imperial  State,  "considering  the  circumstances  and  con- 
ditions "  in  the  dependency,  and  the  Congress  of  the 
United  States  was  declared  to  stand  substantially  in  the 
same  relation  to  the  dependencies  as  the  King  in  Council 
did  to  the  American  Colonies,  though  possessing,  in 
addition,  full  powers  of  legislation  and  execution,  in  aid 
of  its  jurisdiction — that  is,  to  have  the  power  of  disposi- 
tion of  the  dependencies. 

Though  Mr.  Chief  Justice  Fuller,  Mr.  Justice  Field,  and 
Mr.  Justice  Lamar  dissented  in  the  Mormon  Church  Case, 
and  Mr.  Justice  Field,  Mr.  Justice  Gray,  and  Mr.  Justice 
Brown  in  the  McAllister  Case,  their  dissent  did  not  go 
to  the  statement  of  the  majority  regarding  the  effect  of 
the  Constitution  in  the  Territories. 

In  the  case  of  Dowries  v.  Bidwell,  one  of  the  so-called 
Insular  Tariff  Cases,  decided  May  27,  1901,  and  reported 
in  182  U.  S.,  244,  involving  the  validity  of  the  special 
tariff  for  the  island  of  Porto  Rico,  established  by  Act  of 
Congress  on  April  12,  1900,  the  whole  question  of  the  re- 
lationship of  the  Constitution  of  the  United  States  to  the 


American  Administration,  1 787-1 902    563 

Constitution  of  the  American  Empire  was  again  con- 
sidered, and  the  power  of  the  Union  to  establish  this 
special  tariff  was  upheld  by  a  majority  of  the  Court. 
Five  of  the  Judges  were  of  the  opinion  that  the  Con- 
stitution of  the  United  States  is  the  basis  of  the  un- 
written Constitution  of  the  American  Empire,  so  that  the 
American  Union  is  at  liberty  to  treat  its  dependencies  as 
having  natural  rights  of  statehood  and  as  entitled  to  a 
regime  either  of  autonomy  or  of  assimilation  according 
to  the  local  conditions  and  circumstances  of  each ;  and 
four  were  of  the  opinion  that  the  Constitution  of  the 
United  States,  or  some  part  of  it,  is  actually  the  written 
Constitution  of  the  American  Empire,  so  that  the  Union 
can  recognize  no  right  in  the  dependencies  to  a  regime 
of  autonomy,  but  is  obliged  to  force  upon  them,  to  an 
extent  not  specified,  a  regime  by  which  they  shall  be  as- 
similated, as  nearly  as  possible,  to  the  States  of  the 
Union  regardless  of  their  local  conditions  and  circum- 
stances. Because  the  Constitution  provides  that  all 
taxes,  duties,  and  imposts  shall  be  "uniform  throughout 
the  United  States,"  the  dissenting  Judges  were  of 
opinion  that  they  must  be  likewise  uniform  throughout 
the  American  Empire. 

The  regime  which  the  French  call  the  regime  of  assimi- 
lation, the  majority  of  the  Supreme  Court  in  the  Insular 
Tariff  Cases  call  the  regime  of  "incorporation."  The 
French  word  seems  the  more  proper.  "Incorporation" 
means  "admission  into  the  body  and  personality  "  of  the 
State.  In  the  case  of  a  State  under  popular  government, 
incorporation  of  lands  and  populations  can  only  occur  by 
admission  of  them  to  a  representation  in  the  Legislature 
on  equal  terms  with  the  lands  and  populations  already 
constituting  the  body  and  personality  of  the  State,  and 
with  equal  participation  in  the  vote  for  the  Executive  if 
he  is  elective.  In  the  case  of  a  Federal  State,  incorpora- 
tion of  lands  and  populations  can  only  occur  when  they 


564  The  Administration  of  Dependencies 

form  a  State  and  that  State  is  admitted  into  the  Union 
as  a  State,  on  equal  terms  respecting  representation  in 
the  Congress  or  Parliament,  and  with  equal  participation 
in  the  vote  for  Chief  Executive  if  he  is  elective.  Lands 
and  populations,  however,  though  not  incorporated  into 
the  State,  may  be  dependent  upon  the  State  under  a 
regime  similar  in  all  respects  except  participation  in  the 
election  of  the  Central  Government  to  that  which  pre- 
vails in  the  lands  and  populations  which  are  actually  in- 
corporated into  the  State.  Such  a  dependency  is  under 
the  regime  of  "assimilation,"  as  distinguished  from  the 
regime  of  "autonomy." 

Mr.  Justice  White,  speaking  also  for  Mr.  Justice  Shiras 
and  Mr.  Justice  McKenna,  in  his  opinion  maintaining 
the  proposition  that  the  Constitution  of  the  United  States 
is  only  the  basis  of  the  unwritten  Constitution  of  the 
Empire,  and  that  the  American  Union  has  the  right  to 
apply  either  the  regime  of  assimilation  or  autonomy, 
said: 

In  some  adjudged  cases,  the  power  to  locally  govern  at  dis- 
cretion has  been  declared  to  arise  as  an  incident  to  the  right 
to  acquire  territory.  In  others  it  has  been  rested  upon  the 
clause  of  Section  3,  Article  IV.  of  the  Constitution,  which 
vests  Congress  with  the  power  to  dispose  of  and  make  all 
needful  rules  and  regulations  respecting  the  territory  or  other 
property  of  the  United  States.  But  this  divergence,  if  not 
conflict  of  opinion,  does  not  imply  that  the  authority  of  Con- 
gress to  govern  the  Territories  is  outside  of  the  Constitution, 
since  in  either  case  the  right  is  founded  upon  the  Constitu- 
tion, although  referred  to  different  provisions  of  that  instru- 
ment. 

Whilst,  therefore,  there  is  no  express  or  implied  limitation 
on  Congress  in  exercising  its  power  to  create  Local  Govern- 
ments for  any  and  all  of  the  Territories,  by  which  that  body  is 
restrained  from  the  widest  latitude  of  discretion,  it  does  not 
follow  that  there  may  not  be  inherent,  although  unexpressed. 


American  Administration,  1 787-1902    565 

principles  which  are  the  basis  of  all  free  government,  which 
cannot  be  with  impunity  transcended.  But  this  does  not 
suggest  that  every  express  limitation  of  the  Constitution  which 
is  applicable  has  not  force,  but  only  signifies  that  even  in 
cases  where  there  is  no  direct  command  of  the  Constitution 
which  applies,  there  may  nevertheless  be  restrictions  of  so 
fundamental  a  nature  that  they  cannot  be  transgressed,  al- 
though not  expressed  in  so  many  words  in  the  Constitution. 

As  Congress  in  governing  the  Territories  is  subject  to  the 
Constitution,  it  results  that  all  the  limitations  of  the  Constitu- 
tion which  are  applicable  to  Congress  in  exercising  this  au- 
thority necessarily  limit  its  power  on  this  subject.  It  follows 
also  that  every  provision  of  the  Constitution  which  is  applicable 
to  the  Territories  is  also  controlling  therein. 

It  is  insisted,  however,  conceding  the  right  of  the  Govern- 
ment of  the  United  States  to  acquire  territory,  that,  as  all  such 
territory  when  acquired  becomes  absolutely  incorporated  into 
the  United  States,  every  provision  of  the  Constitution  which 
would  apply  under  that  situation  is  controlling  in  such  ac- 
quired territory.  This,  however,  is  but  to  admit  the  power 
to  acquire,  and  immediately  to  deny  its  beneficial  existence. 

The  general  principle  of  the  law  of  nations,  already  stated, 
is  that  acquired  territory,  in  the  absence  of  agreement  to  the 
contrary,  will  bear  such  relation  to  the  acquiring  government 
as  may  be  by  it  determined.  To  concede  to  the  Government 
of  the  United  States  the  right  to  acquire,  and  to  strip  it  of  all 
power  to  protect  the  birthright  of  its  own  citizens  and  to  pro- 
vide for  the  well-being  of  the  acquired  territory  by  such 
enactments  as  may  in  view  of  its  condition  be  essential,  is,  in 
effect,  to  say  that  the  United  States  is  helpless  in  the  family 
of  nations,  and  does  not  possess  that  authority  which  has  at 
all  times  been  treated  as  an  incident  of  the  right  to  acquire. 
Let  me  illustrate  the  accuracy  of  this  statement.  Take  a 
case  of  discovery.  Citizens  of  the  United  States  discover  an 
unknown  island,  peopled  with  an  uncivilized  race,  yet  rich 
in  soil,  and  valuable  to  the  United  States  for  commercial  and 
strategic  reasons.     Clearly,  by  the  law  of  nations,  the  right 


566  The  Administration  of  Dependencies 

to  ratify  such  acquisition  and  thus  to  acquire  the  territory 
would  pertain  to  the  Government  of  the  United  States.  Can 
it  be  denied  that  such  right  could  not  be  practically  exercised 
if  the  result  would  be  to  endow  the  inhabitants  with  the 
citizenship  of  the  United  States  and  to  subject  them  not  only 
to  local  but  also  to  an  equal  proportion  of  national  taxes,  even 
although  the  consequence  would  be  to  entail  ruin  on  the  dis- 
covered territory  and  to  inflict  grave  detriment  on  the  United 
States  to  arise  both  from  the  dislocation  of  its  fiscal  system 
and  the  immediate  bestowal  of  citizenship  on  those  absolutely 
unfit  to  receive  it  ? 


The  result  of  what  has  been  said  is  that  whilst  in  an  inter- 
national sense  Porto  Rico  is  not  a  foreign  country,  since  it 
was  subject  to  the  Sovereignty  of,  and  was  owned  by,  the 
United  States,  it  was  foreign  to  the  United  States  in  a  domes- 
tic sense,  because  the  island  had  not  been  incorporated  into 
the  United  States,  but  was  merely  appurtenant  thereto  as  a 
possession. 

Mr.  Justice  Brown,  who  was  one  of  the  five  judges  of  the 
majority,  in  his  concurring  opinion  regarded  the  unwritten 
Constitution  of  the  American  Empire  as  being  almost 
wholly  divorced  from  the  Constitution  of  the  United 
States,  and  as  being  determined,  therefore,  by  the  prin- 
ciples of  the  general  public  law  of  the  civilized  world. 
He  suggested  that  there  might  be  some  express  restric- 
tions upon  the  power  of  the  American  Union  in  favor  of 
natural  rights,  contained  in  the  Constitution  of  the  United 
States,  which  were  of  so  universal  a  nature  as  to  be  ap- 
plicable in  whatever  part  of  the  universe  the  power  of 
the  American  Union  was  exercised. 

In  his  opinion,  Mr.  Justice  Brown  made  the  following 
suggestion  concerning  the  effect  of  the  Fourteenth 
Amendment,  which  has  by  some  persons  been  supposed 
to  make  all  persons  born  or  naturalized  in  the  depen- 


American  Administration,  1 787-1 902    567 

dencies  of  the  American  Union  "citizens  of  the  United 
States": 

The  Thirteenth  Amendment  to  the  Constitution  prohibiting 
slavery  and  involuntary  servitude  "within  the  United  States 
or  any  place  subject  to  their  jurisdiction  "  is  also  significant 
as  showing  that  there  may  be  places  within  the  jurisdiction  of 
the  United  States  that  are  no  part  of  the  Union.  To  say  that 
the  phraseology  of  this  Amendment  was  due  to  the  fact  that 
it  was  intended  to  prohibit  slavery  in  the  seceded  States, 
under  a  possible  interpretation  that  those  States  were  no 
longer  a  part  of  the  Union,  is  to  confess  the  very  point  in 
issue,  since  it  involves  an  admission  that,  if  these  States  were 
not  a  part  of  the  Union,  they  were  still  subject  to  the  juris- 
diction of  the  United  States. 

The  Fourteenth  Amendment,  upon  the  subject  of  citizen- 
ship, declares  only  that  "all  persons  born  or  naturalized  in 
the  United  States,  and  subject  to  the  jurisdiction  thereof,  are 
citizens  of  the  United  States  and  of  the  State  in  which  they 
reside."  Here  there  is  a  limitation  to  persons  born  or 
naturalized  in  the  United  States  which  is  not  extended  to 
persons  born  in  any  place  "subject  to  their  jurisdiction." 

This  amounts,  of  course,  to  saying  that  only  persons 
born  or  naturalized  within  one  of  the  States  of  the  Union 
are  citizens  of  the  United  States,  since  that  was  undoubt- 
edly the  case  before  the  adoption  of  the  Fourteenth 
Amendment,  and  that  Amendment  establishes  no  rule 
to  the  contrary — in  other  words,  it  amounts  to  saying 
that  the  inhabitants  of  the  dependencies  of  the  American 
Union  are  not  citizens  of  the  United  States  except  so  far 
as  some  of  them  may  have  been  born  or  naturalized  in 
some  State  of  the  Union. 

Mr.  Justice  Gray,  in  his  opinion  concurring  with  that 
of  Mr.  Justice  White,  committed  himself  only  to  the 
proposition  that  the  American  Union,  if  it  "is  not  ready 
to  construct  a  complete  Government  for  the  conquered 


568  The  Administration  of  Dependencies 

territory  .  .  .  may  establish  a  temporary  Govern- 
ment, which  is  not  subject  to  all  the  restrictions  of  the 
Constitution." 

Mr.  Chief  Justice  Fuller,  in  delivering  the  opinion  of 
the  dissenting  Judges  (himself,  Mr.  Justice  Harlan,  Mr. 
Justice  Brewer,  and  Mr.  Justice  Peckham),  denied  that 
the  dissenting  Judges  regarded  Porto  Rico  as  "incor- 
porated "  into  the  Union,  saying: 

Great  stress  is  thrown  upon  the  word  "incorporation  "  as  if 
possessed  of  some  occult  meaning,  but  I  take  it  that  the  Act 
under  consideration  made  Porto  Rico,  whatever  its  situation 
before,  an  organized  territory  of  the  United  States. 

Mr.  Justice  Harlan,  in  his  separate  dissenting  opinion, 
after  specifying  the  various  acts  of  power  exercised  by 
the  American  Union  over  Porto  Rico  under  the  terms  of 
the  Porto  Rico  Act,  thus  criticised  the  use  of  the  word 
"  incorporation  "  in  this  connection: 

It  would  seem,  according  to  the  theory  of  some,  that  even 
if  Porto  Rico  is  in  and  of  the  United  States  for  many  impor- 
tant purposes,  it  is  yet  not  a  part  of  this  country  with  the 
privilege  of  protesting  against  a  rule  of  taxation  which  Con- 
gress is  expressly  forbidden  by  the  Constitution  from  adopting 
as  to  any  part  of  the  "United  States."  And  this  result 
comes  from  the  failure  of  Congress  to  use  the  word  "in- 
corporate" in  the  [Porto  Rico]  Act,  although  by  the  same 
Act  all  power  exercised  by  the  Civil  Government  in  Porto  Rico 
is  by  authority  of  the  United  States,  and  although  this  Court 
has  been  given  jurisdiction  by  writ  of  error  or  appeal  to  re- 
examine the  final  judgments  of  the  District  Court  of  the 
United  States  established  by  Congress  for  that  Territory. 
Suppose  Congress  had  passed  this  act:  "Be  it  enacted  by  the 
Senate  and  House  of  Representatives  in  Congress  assembled, 
That  Porto  Rico  be  and  is  hereby  incorporated  into  the 
United  States  as  a    Territory,"  would   such   a  statute  have 


American  Administration,  1 787-1902    569 

enlarged  the  scope  or  effect  of  the  [Porto  Rico]  Act  ?  Would 
such  a  statute  have  accomplished  more  than  the  [Porto  Rico] 
Act  has  done  ?  Indeed,  would  not  such  legislation  have  been 
regarded  as  most  extraordinary  as  well  as  unnecessary  ? 

I  am  constrained  to  say  that  this  idea  of  *'  incorporation  " 
has  some  occult  meaning  which  my  mind  does  not  apprehend. 
It  is  enveloped  in  some  mystery  which  I  am  unable  to  unravel. 

In  my  opinion,  Porto  Rico  became,  at  least  after  the  ratifi- 
cation of  the  Treaty  with  Spain,  a  part  of  and  subject  to  the 
jurisdiction  of  the  United  States  in  respect  of  all  its  territory 
and  people,  and  Congress  could  not  thereafter  impose  any 
duty,  impost,  or  excise  in  respect  to  that  Island  and  its  inhabi- 
tants which  departed  from  the  rule  of  uniformity  established 
by  the  Constitution. 

The  theory  of  the  dissenting  Judges  seems  to  be  that 
the  parts  of  the  Constitution  which  apply  to  the  depen- 
dencies at  all  apply  to  them  literally.  Mr.  Chief  Justice 
Fuller,  in  his  opinion,  said : 

In  our  judgment,  so  much  of  the  Porto  Rican  Act  as  au- 
thorized the  imposition  of  these  duties  is  invalid,  and  plaintiffs 
were  entitled  to  recover. 

Some  argument  was  made  as  to  the  general  consequences 
apprehended  to  flow  from  this  result,  but  the  language  of  the 
Constitution  is  too  plain  and  unambiguous  to  permit  its  mean- 
ing to  be  thus  influenced.  There  is  nothing  "in  the  literal 
construction  so  obviously  absurd,  or  mischievous,  or  repugnant 
to  the  general  spirit  of  the  instrument,  as  to  justify  those  who 
expound  the  Constitution  "  in  giving  it  a  construction  not  war- 
ranted by  its  words. 

If  the  dependencies  of  the  American  Union  are  not 
"incorporated  into"  the  body  and  personality  of  the 
Union,  as  the  dissenting  Judges  insist  they  are  not,  and 
if  they  are  nevertheless  subject  to  the  power  of  the 
American  Government  under  the  express  limitations  of 
the  Constitution   interpreted   with  the  same  literalness 


570  The  Administration  of  Dependencies 

as  if  it  were  a  question  of  their  operation  within  the 
States  of  the  Union,  it  necessarily  follows  that  the  mi- 
nority Judges  regard  all  the  American  dependencies  as 
dependencies  under  a  regime  of  assimilation. 

The  dissenting  Judges  criticized  the  theory  of  the  ma- 
jority, as  a  theory  according  to  which  the  dependencies 
of  the  American  Union  are  subjected  to  "absolute"  and 
"unrestricted  "  power.     They  said: 

The  contention  seems  to  be  that  if  an  organized  and  settled 
Province  of  another  Sovereignty  is  acquired  by  the  United 
States,  Congress  has  the  power  to  keep  it,  like  a  disembodied 
shade,  in  an  intermediate  state  of  ambiguous  existence  for  an 
indefinite  period;  and,  more  than  that,  that  after  it  has  been 
called  from  that  limbo,  commerce  with  it  is  absolutely  subject 
to  the  will  of  Congress,  irrespective  of  constitutional  pro- 
visions. 

That  theory  [of  the  majority  of  the  Court]  assumes  that  the 
Constitution  created  a  Government  empowered  to  acquire 
countries  throughout  the  world,  to  be  governed  by  different 
rules  than  those  obtaining  in  the  original  States  and  Terri- 
tories, and  substitutes  for  the  present  system  of  republican 
government  a  system  of  domination  over  distant  Provinces  in 
the  exercise  of  unrestricted  power. 

The  plain  and  necessary  meaning  of  the  majority  of 
the  Court  is,  however,  that  the  power  of  the  American 
Union  over  its  dependencies  is  neither  an  absolute  power 
nor  an  unrestricted  power,  but  a  conditional  power  and 
a  power  limited  by  the  necessity  for  its  exercise  in  the 
particular  case.  It  is  not  a  power  which  is  exercised 
by  the  Government  of  the  American  Union  without  a 
Constitution,  but  a  power  exercised  under  a  trust  im- 
posed on  the  Government  of  the  American  Union  by  the 
people  of  the  American  Union,  in  their  written  Constitu- 
tion,   compelling   the    Government    to   adjudicate   and 


American  Administration,  1 787-1 902    571 

execute  an  unwritten  Constitution.  The  majority  of  the 
Court  recognize  that  a  written  Constitution  is  only  the 
best  evidence  of  the  unwritten  Constitution  which  it  evi- 
dences, and  that  the  same  rule  of  the  relationship  be- 
tween the  Constitution  of  a  State  and  the  Constitution  of 
its  Empire  applies,  whether  the  Constitution  of  the  State 
is  written  or  unwritten, — that  the  Constitution  of  a  State, 
whether  written  or  unwritten,  is  in  force  in  its  dependen- 
cies so  far  as  may  be  practicable,  considering  the  local 
conditions  and  circumstances  of  each  dependency,  and  to 
this  extent  forms  a  part  of  the  unwritten  Constitution 
of  the  Empire  of  the  State.  There  is  nothing  in  this 
theory  which  militates  against  the  interposition  of  the 
Imperial  Judiciary  for  the  protection  of  private  rights. 
The  very  definition  of  the  Imperial  power  in  the  Consti- 
tution as  the  power  of  disposition  accompanied  by  a 
power  to  make  all  needful  rules  and  regulations,  implies 
a  power  existing  somewhere  to  nullify  all  acts  of  the 
American  Union  which  are  not  acts  of  disposition,  and 
all  legislative  acts  which  are  not  "needful." 

On  the  other  hand,  the  theory  of  the  dissenting 
Judges,  though  apparently  based  upon  a  desire  to  pro- 
tect the  inhabitants  of  the  dependencies  against  unlim- 
ited governmental  power,  is  really  based  upon  the  theory 
that  the  power  of  the  Imperial  State  over  its  depen- 
dencies is  a  power  based  upon  its  will,  supported  by 
force,  and  not  upon  compact.  Any  regime  of  assimila- 
tion necessarily  implies  the  non-recognition  of  the  wishes 
and  desires  of  the  people  of  the  dependencies,  and  the 
claim  on  the  part  of  the  people  of  the  Imperial  State 
that  what  they  consider  good  for  them  is  good  also  for 
the  people  of  the  dependencies.  The  enforcement  of 
limitations  on  governmental  power  may  be  an  injustice 
to  the  people  of  the  dependencies,  where  it  would  be 
doing  justice  to  the  people  of  the  Imperial  State.  The 
exercise  of  governmental  power  according  to  the  neces- 


572  The  Administration  of  Dependencies 

sity  of  the  case  is  the  prime  necessity  of  all  community 
life,  and  to  require  power  to  be  exercised  in  a  certain 
manner,  which  is  not  the  manner  dictated  by  the  neces- 
sity of  the  case,  is  practically  to  deny  to  the  community 
the  prime  necessity  of  community  life,  and  to  exercise 
power  which  to  all  intents  and  purposes  is,  so  far  as  the 
people  of  the  dependencies  are  concerned,  "absolute" 
and  "unrestricted." 

By  the  decision  in  the  Insular  Tariff  Cases,  the  purpose 
of  the  framers  of  the  Constitution  has  been  at  last  recog- 
nized and  fulfilled,  and  the  American  Empire  is  recog- 
nized as  a  Federal  Empire. 

If  the  history  of  the  instrumentalities  by  which  the 
American  Union  has  performed  its  Imperial  obligations 
is  examined,  they  will  be  found  to  reflect  the  views  which 
have  been  held,  from  time  to  time,  concerning  the  po- 
litical relationship. 

From  the  beginning  of  the  nineteenth  century  until 
very  recently,  the  Congress  has  regarded  itself  as  the 
sole  representative  of  the  American  Union  in  the  exer- 
cise of  the  power  over  its  dependencies.  Though,  by 
the  Organic  Acts  of  the  Territories,  the  President,  by 
and  with  the  consent  of  the  Senate,  has  been  recognized 
as  having  the  power  to  appoint  the  Territorial  Governors 
and  Secretaries  and  in  some  cases  the  Executive  and 
Legislative  Councils,  he  has  not  been  recognized  until 
recently  as  having  any  legislative  power,  except  for 
military  purposes  or  purposes  incidental  thereto,  either 
negative  or  affirmative.  This  power  has  been  claimed 
and  exercised  solely  by  Congress.  Though  the  reports 
of  Territorial  Governors,  when  they  have  been  made, 
have  always  been  made  to  the  President,  through  one 
of  his  Secretaries,  it  has  been  for  the  purpose  of  laying 
them  before  Congress. 

By  Act  of  1884,  the  District  of  Alaska  was  given  a  form 
of  government  wholly  appointive  but  without  legislative 


American  Administration,  1 787-1902    573 

powers,  the  applicable  provisions  of  the  laws  of  Oregon 
being  declared  by  the  Act  to  be  in  force  in  the  District. 
This  form  of  government  was  continued  by  the  Act  of 
1900,  providing  a  code  for  the  District. 
By  Joint  Resolution  of  July  7,  1898,  it  was  provided: 

That  the  Hawaiian  Islands  and  their  dependencies  be  and 
they  are  hereby  annexed  as  a  part  of  the  territory  of  the 
United  States,  and  are  subject  to  the  sovereign  dominion 
thereof. 

By  this  Resolution  it  was  also  provided : 

That  until  Congress  shall  provide  for  the  government  of 
such  Islands,  all  the  civil,  judicial,  and  military  powers  exer- 
cised by  the  officers  of  the  existing  Government  in  said  Islands 
shall  be  vested  in  such  person  or  persons,  and  shall  be  exer- 
cised in  such  manner  as  the  President  of  the  United  States 
shall  direct;  and  the  President  shall  have  power  to  remove 

said  officers  and  fill  the  vacancies  so  occasioned. 

f 

By  the  Act  of  1900,  Hawaii  was  given  a  Territorial 
form  of  government. 

Various  provisions  having  been  made  in  the  treatres 
prior  to  1898  by  which  territory  was  ceded,  concerning 
the  rights  of  the  inhabitants,  some  of  which  had  led  to  a 
claim,  by  the  people  of  the  dependencies  in  the  ceded 
regions,  of  a  right  to  be  admitted  as  Member-States  of 
the  American  Union,  this  possibility  was  carefully  guarded 
against  in  the  treaty  of  cession  from  Spain  of  December 
10,  1898,  following  substantially  the  provisions  in  the 
treaty  with  Russia  of  1887  ceding  Alaska,  by  a  provision 
which  read  as  follows : 

The  civil  rights  and  political  status  of  the  native  inhabitants 
of  the  territories  hereby  ceded  to  the  United  States  shall  be 
determined  by  Congress. 


574  The  Administration  of  Dependencies 

By  the  Act  of  1900,  the  Island  of  Porto  Rico  was  given 
a  Government,  under  an  appointed  Governor  and  Council 
and  an  elected  House  of  Representatives,  with  full  powers 
of  local  legislation.  The  Act  was  so  worded  as  to  make 
it  impossible  for  a  claim  to  be  made  under  it  that  the 
American  Union  was  under  any  obligation  to  Porto  Rico 
to  admit  that  dependency  into  the  Union. 

On  April  7,  1900,  a  Philippine  Commission  of  five 
members  was  appointed  by  the  President,  without  au- 
thority of  any  Act  or  Resolution  of  Congress,  which  was, 
by  the  Instructions  accompanying  the  President's  com- 
mission, given  the  following  powers,  among  others : 

Beginning  with  the  ist  of  September,  1900,  the  authority  to 
exercise,  subject  to  my  approval,  through  the  Secretary  of 
War,  that  part  of  the  power  of  government  in  the  Philippine 
Islands  which  is  of  a  legislative  nature  is  to  be  transferred 
from  the  Military  Governor  of  the  Islands  to  this  Commission, 
to  be  thereafter  exercised  by  them  in  the  place  and  stead  of 
the  Military  Governor,  under  sifch  rules  and  regulations  as 
you  shall  prescribe,  until  the  establishment  of  the  Civil  Central 
Government  for  the  Islands  ...  or  until  Congress  shall 
otherwise  provide. 

The  Instructions  required  the  Commission  to  admit  the 
natives  to  as  large  a  share  in  the  Government  as  possible, 
provided  for  putting  the  Civil  Service  of  the  Islands  under 
proper  regulations  to  insure  expertness,  enjoined  legisla- 
tion conforming  as  far  as  practicable  to  the  customs,  habits, 
and  prejudices  of  the  people,  and  authorized  the  isolation 
of  uncivilized  tribes  under  their  tribal  governments. 

By  Act  of  Congress  of  March  2,  1901,  it  was  provided: 

All  military,  civil,  and  judicial  powers  necessary  to  govern 
the  Philippine  Islands,  .  .  .  shall,  until  otherwise  pro- 
vided by  Congress,  be  vested  in  such  person  or  persons  and 
shall  be  exercised  in  such  manner  as  the  President  of  the 


American  Administration,  1 787-1 902    575 

United  States  shall  direct,  for  the  establishment  of  civil  gov- 
ernment and  for  maintaining  and  protecting  the  inhabitants 
of  said  Islands  in  the  free  enjoyment  of  their  liberty,  property, 
and  religion:  Provided^  That  all  franchises  granted  under  the 
authority  hereof  shall  contain  a  reservation  of  the  right  to 
alter,  amend,  or  repeal  the  same. 

Until  a  Permanent  Government  shall  have  been  established 
in  said  Archipelago,  full  reports  shall  be  made  to  Congress,  on 
or  before  the  first  day  of  each  regular  session,  of  all  legislative 
acts  and  proceedings  of  the  Temporary  Government  instituted 
under  the  provisions  hereof;  and  full  reports  of  the  acts  and 
doings  of  the  said  Government,  and  as  to  the  condition  of  the 
Archipelago  and  of  its  people  shall  be  made  to  the  President, 
including  all  information  which  may  be  useful  to  the  Congress 
in  providing  for  a  more  permanent  Government:  Provided, 
That  no  sale  or  lease  or  other  disposition  of  the  public  lands 
or  the  timber  thereon  or  the  mining  rights  therein  shall  be 
made:  And  provided  further.  That  no  franchise  shall  be 
granted  which  is  not  approved  by  the  President  of  the  United 
States,  and  is  not  in  his  judgment  clearly  necessary  for  the 
immediate  government  of  the  Islands  and  indispensable  for 
the  interest  of  the  people  thereof,  and  which  cannot,  without 
great  public  mischief,  be  postponed  until  the  establishment 
of  permanent  civil  government;  and  all  such  franchises  shall 
terminate  one  year  after  the  establishment  of  such  permanent 
civil  government. 

The  actual  condition  of  affairs  with  respect  to  the 
Philippine  Islands,  therefore,  is  that  Congress  has  tempo- 
rarily withdrawn  from  the  habitual  and  constant  control 
and  has  recognized  that  the  President  is,  for  temporary 
and  special  purposes,  the  proper  representative  of  the 
United  States  in  exercising  the  Imperial  power  and  per- 
forming the  Imperial  obligations.  It  exercises  the  power 
of  superintendence,  and  claims  the  power  to  substitute 
itself  at  any  time  for  the  President  in  the  habitual  and 
constant  exercise  of  the  Imperial  power. 


57^  The  Administration  of  Dependencies 

As  the  President  exercises  all  his  powers  through  Sec- 
retaries or  Secretarial  Boards,  it  is  important  to  ascertain 
the  Executive  Departments  in  whose  charge  the  business 
of  the  relations  with  the  dependencies  has  been  since  the 
adoption  of  the  Constitution. 

Until  March  i,  1873,  the  relations  with  the  Territories 
were  in  the  charge  of  the  Secretary  who  is  called  the 
Secretary  of  State,  but  who  is  really  the  Secretary  of 
State  for  Foreign  Affairs,  upon  whom  some  of  the  func- 
tions of  the  Secretariat  for  Home  Affairs  were  imposed 
in  the  year  1789,  for  special  reasons  which  no  longer  exist. 
The  Secretariat  was  originally  created  as  the  Secretariat 
for  Foreign  Affairs  and  the  name  was  changed  when  the 
special  duties  were  added.  The  dependencies  were  thus 
treated  as  "foreign  States  "  and  their  affairs  as  "foreign 
affairs,"  to  quote  the  language  of  the  original  Act  creat- 
ing this  Secretariat. 

On  March  i,  1873,  by  Act  of  Congress,  all  powers  and 
duties  in  relation  to  the  Territories  "that  were,  prior  to 
March  i,  1873,  by  law  or  custom  exercised  and  performed 
by  the  Secretary  of  State  "  were  transferred  to  the  Secre- 
tary of  the  Interior. 

The  Secretary  of  the  Interior  has  charge,  under  this 
statute,  at  the  present  time,  of  the  relations  with  the 
continental  Territories,  including  Alaska,  with  Hawaii, 
and,  under  special  statutes,  of  some  of  the  relations  with 
Porto  Rico. 

As  matter  of  fact,  the  relations  between  the  Ameri- 
can Union  and  the  Territories  seem  to  have  been  almost 
entirely  neglected  until  a  very  recent  period.  The  ap- 
pointed Governors  and  Secretaries  have  regarded  them- 
selves as  responsible  entirely  to  the  people  and  the 
elected  Senate  and  House  of  Representatives  of  the  re- 
spective Territories,  and  the  delegate  in  Congress,  with 
the  power  to  debate  but  not  to  vote,  has  been  recognized 
as  the  link  between  each  Territory  and  the  Union.     At 


American  Administration,  1 787-1 902    577 

the  present  time  Governors  of  Territories  report  to  the 
Secretary  of  the  Interior,  and  their  reports  are  laid  before 
the  President  and  Congress. 

Upon  the  establishment  of  the  Secretariat  of  War  in 
1789,  the  relations  with  the  Indians  were  placed  in  charge 
of  this  Department.  In  1832,  by  Act  of  Congress,  a 
permanent  Under-Secretariat  in  this  Department  for  this 
purpose  was  created,  in  charge  of  a  "Commissioner  for 
Indian  Affairs"  who  was  to  have  "the  direction  and 
management  of  all  Indian  affairs,  and  of  all  matters 
arising  out  of  Indian  relations"  and  was  obliged  to  act 
"under  the  direction  of  the  Secretary  of  War  and  agree- 
ably to  such  regulations  as  the  President  may,  from  time 
to  time,  prescribe."  The  propriety  and  necessity  of  leav- 
ing the  habitual  and  constant  charge  of  the  relations 
■with  the  Indian  tribes  in  the  hands  of  the  President  was 
thus  recognized.  In  1849,  ^Y  ^^^  ^^  Congress,  "the 
supervising  and  appellate  powers  exercised  by  the  Secre- 
tary of  the  War  Department  "  over  the  Commissioner  for 
Indian  Affairs  were  transferred  to  the  Department  of  the 
Interior,  where  they  still  remain. 

The  relations  of  the  American  Union  with  the  Philip- 
pines are  still  in  the  charge  of  the  War  Department,  in 
which  there  has  been  established  a  Division,  called  the 
Division  of  Insular  Affairs,  having  the  immediate  direc- 
tion of  affairs. 

In  its  theory,  as  declared  by  the  Supreme  Court,  and 
in  its  practice,  as  shown  by  the  action  of  Congress  and 
the  President,  therefore,  the  American  Union  is  daily 
recognizing  itself  as  an  Imperial  State  performing  Im- 
perial obligations  and  exercising  Imperial  power  over 
external  States.  The  American  Federal  Empire  is  a 
fact,  and  will  remain  a  fact.  It  remains,  therefore,  to 
ascertain  its  Imperial  obligations. 


CHAPTER  XXVII 

IMPERIAL   OBLIGATIONS 

ASSUMING  it  to  be  granted  that  the  people  and 
lands  of  the  American  Union  and  the  people  and 
lands  of  its  dependencies  constitute  a  Federal 
Empire,  and  that  the  people  of  the  American  Union,  by 
their  written  Constitution  consented  to  by  all  the  people 
of  the  Empire,  have  divided  the  governmental  power 
under  an  unwritten  Constitution,  so  that  the  Union  is 
the  Imperial  State  as  respects  the  dependencies,  stand- 
ing in  a  federal  and  contractual  relation  to  them,  and 
having  neither  unconditional  nor  unlimited  power  over 
them,  but  only  a  power  of  disposition, — which  implies 
adjudication  as  a  prerequisite,  and  in  which  is  included 
the  power  to  execute  its  adjudications  by  all  needful  rules 
and  regulations, — it  becomes  important  to  attempt  to 
ascertain  the  obligations  which,  in  this  view,  are  imposed 
upon  the  American  Union  and  its  people. 

The  first  obligation  undoubtedly  is  that  the  two 
great  instrumentalities  of  government  —  the  Senate  and 
House  of  Representatives,  together  constituting  the 
Congress  (the  President  participating  in  the  action  of 
Congress  only  as  a  Committee  of  Revision  with  power  to 
compel  reconsideration,  but  not  to  nullify  its  action), 
and  the  President,  acting  separately  and  apart  from  the 
Congress  —  shall  be  properly  related  to  each  other  in  the 
exercise  of  the  Imperial  power. 

Considering,  first,  the  question  of  the  propriety  of  at- 
tempting to  administer  the  dependencies  wholly  through 

578 


Imperial  Obligations  579 

the  instrumentality  of  the  Congress,  it  is  to  be  noticed 
that,  if  such  were  the  habitual  and  constant  method  of 
administration,  it  would  amount,  when  viewed  from  the 
standpoint  of  the  dependencies,  to  habitual  and  constant 
administration  by  an  oligarchy  of  foreigners.  If  the 
oligarchy  were  composed  of  a  small  body  of  men,  having 
a  unity  of  view  and  interest,  and  familiar  with  the  local 
circumstances  and  conditions  of  the  dependencies  as  well 
as  with  those  of  the  Union,  such  a  body  might  be,  per- 
haps, a  very  proper  and  effective  instrumentality  for  the 
performance  of  the  national  trust.  As  a  matter  of  fact, 
however,  the  Congress  is  not  a  small  but  a  large  body ; 
it  has  not  a  unity  of  view  and  interest,  but  is  always 
divided  into  at  least  two  great  parties,  and  always  repre- 
sents local  interests,  many  of  which  are  opposed  not  only 
to  the  interests  of  the  dependencies,  but  to  the  interests 
of  each  other ;  its  members  are  elected  primarily  for  the 
protection  of  local  interests,  secondarily  for  the  protec- 
tion of  the  interests  of  the  whole  Union,  and  lastly,  when 
these  interests  have  been  protected,  to  protect  the  inter- 
ests of  the  dependencies.  With  the  best  and  most  honest 
intentions  in  the  world,  a  man  elected  to  the  Senate  or 
House  of  Representatives  is  under  a  pressure  to  protect 
the  local  interests  and  the  interests  of  the  whole  Union, 
which  makes  it  impossible  for  him  to  place  the  interests 
of  the  dependencies  on  anything  like  an  equality  with, 
the  other  interests. 

Moreover,  a  large  body  of  men  is,  in  the  nature  of 
things,  disqualified  from  determining  questions  where 
the  facts  are  complicated  and  are  not  facts  of  common 
knowledge.  The  theory  of  legislation  is  that  the  mem- 
bers of  the  Legislature  are  familiar  with  the  facts,  and 
that  they  deliberate  simply  concerning  the  rule  to  be  ap- 
plied to  established  facts.  Congressional  committees  in- 
vestigate facts,  but  such  investigations  are  properly  for 
the  purpose  of  settling  disputed  or  doubtful  questions  of 


580  The  Administration  of  Dependencies 

fact,  and  not  for  the  purpose  of  investigating  facts  con- 
cerning which  no  knowledge  can  be  had  except  by  a 
process  of  investigation.  The  administration  of  depen- 
dencies, however,  requires  a  continuous  investigation  of 
facts*  concerning  which  the  members  of  the  Senate  and 
House  of  Representatives  cannot,  in  the  nature  of  things, 
have  a  knowledge  as  a  part  of  their  common  and  daily 
experience.  For  the  Congress,  therefore,  to  attempt  to 
act  as  the  representative  of  the  American  Union  in  the 
fulfilment  of  its  continuous  daily  and  hourly  duties, 
would  require  it  to  sit  continuously  and  to  be  continu- 
ously investigating  new  facts  through  its  committees. 
There  are  therefore,  obviously,  serious  objections  grow- 
ing out  of  the  character  and  composition  of  the  Congress, 
to  the  proposition  that  the  American  Union  can  habitu- 
ally and  constantly  administer  its  dependencies  through 
the  instrumentality  of  Congress. 

There  are,  likewise,  serious  objections  against  placing 
the  habitual  and  daily  administration  of  the  dependen- 
cies in  the  hands  of  the  President.  The  President  him- 
self is  elected  by  a  party,  and  is  likely  to  be  swayed  by 
partisan  considerations;  he  may  or  may  not  have  a  per- 
sonal knowledge  of  the  local  circumstances  and  condi- 
tions in  the  dependencies;  and  he  may  or  may  not  have 
the  capacity  of  investigating  and  digesting  facts.  Further 
than  this,  to  allow  one  man,  free  from  supervision  and 
control,  to  adjudicate  the  unwritten  Constitution  of  the 
American  Empire  and  to  legislate  in  execution  of  his 
adjudications,  even  though  all  the  people  of  the  Empire 
should  consent  and  agree  to  this,  would  be  to  subject  the 
President  to  a  temptation  to  convert  his  conditional  and 
limited  power  into  a  power  practically  unconditioned  and 
unlimited,  and,  judging  from  history,  the  temptation 
would  not  be  withstood. 

When  the  objections  to  the  administration  of  depen- 
dencies by  the  Congress  or  by  the  President  are  sum- 


Imperial  Obligations  581 

marized,  it  thus  appears  that  the  objections  to  adminis- 
tration by  Congress  are  really  objections  to  the  habitual 
and  daily  exercise  of  power  for  this  purpose.  Congress 
can  occasionally  and  in  matters  of  great  importance  in- 
vestigate by  its  committees  facts  which  are  wholly  out- 
side of  common  knowledge,  and  can  decide  upon  those 
facts,  and  when  the  matter  is  of  sufficient  importance  so 
that  it  can  afford  to  give  the  time  necessary  to  ascertain 
all  the  facts  and  so  that  the  matter  may  be  debated  and 
deliberated,  the  Congress  can  give  a  decision  which  will 
be  judicious  and  adequate.  The  Congress  is,  there- 
fore, a  body  admirably  adapted  for  the  purposes  of  gen- 
eral superintendence.  A  superintending  body  interferes 
with  the  agent  body  only  occasionally,  and  for  the  pur- 
pose of  keeping  the  agent  body  within  its  limits  and  of 
compelling  it  to  perform  the  conditions  under  which  it 
acts,  but  when  the  superintending  body  acts,  its  action 
is  final  and  supersedes  and  nullifies  all  contrary  action 
of  the  agent  body. 

On  the  other  hand,  the  objections  to  administration  of 
the  dependencies  by  the  President  are  really  objections 
to  his  acting  without  supervision  and  control  by  a  super- 
intending body.  Because  the  Presidential  office  is  vested 
in  one  man,  the  President  is  qualified  to  act  as  the  habit- 
ual and  daily  administrator  of  the  dependencies.  The 
President,  and  his  assistants,  are  continuously  in  the  per- 
formance of  governmental  duties.  Matters  requiring  im- 
mediate action  can  receive  his  immediate  attention.  He 
can  be  supplied,  or  can  supply  himself  with  expert  investi- 
gators and  advisers  on  every  subject,  who  will  be  able 
to  apply  themselves  continuously  to  the  work.  Con- 
gress can  give  these  expert  advisers  power  to  compel  the 
giving  of  testimony,  and  to  make  personal  investigations 
in  any  part  of  the  world  and  may  require  them  to 
preserve  the  records  of  their  investigations.  The  very 
functions  which  the  Congress  is  least  qualified  to  perform 


582  The  Administration  of  Dependencies 

in  the  administration  of  dependencies,  the  President,  as- 
sisted by  expert  investigators  and  advisers,  is  able  per- 
fectly to  perform. 

It  seems,  therefore,  to  be  indicated  from  the  very  na- 
ture of  things  that  the  habitual  and  daily  administration 
of  the  dependencies  of  the  American  Union  should  be 
in  the  charge  of  the  President,  assisted  by  expert  in 
vestigators  and  advisers,  and  that  the  superintendence 
and  final  control  of  the  administration  should  rest  with 
the  Congress,  subject  only  to  the  final  judgment  of  the 
whole  people  of  the  American  Union,  expressed  at  the 
polls. 

If  the  subject  is  examined  from  the  standpoint  of  ex- 
pediency, the  same  result  is  reached, — that  the  habitual 
and  daily  administration  of  the  dependencies  should  be 
in  the  charge  of  the  President,  and  that  the  Congress 
should  exercise  the  power  of  superintendence.  Since  the 
administration  of  dependencies  is,  in  the  last  analysis, 
nothing  more  or  less  than  the  performance  of  a  trust 
which  the  American  Union  and  its  people  are  under  obli- 
gation both  to  adjudicate  and  to  execute,  the  general 
principles  which  are  applicable  to  the  administration  of 
private  trusts  must  be  also  applicable  in  this  case.  Ex- 
perience teaches  that  there  are  three  conditions  which 
are  likely  to  lead  to  the  maladministration  of  trusts — 
division  of  responsibility  between  the  trustees,  a  failure  to 
require  records  to  be  kept  of  all  action  under  the  trust, 
and  a  failure  to  make  provision  for  coherency  and  con- 
tinuity of  administration. 

There  is  a  division  of  responsibility  when  any  one  of 
several  trustees  is  authorized  to  act,  and  it  is  left  uncer- 
tain whether  or  not  his  action  binds  the  others,  or  when 
a  trustee  acts  without  certainly  binding  his  successors. 
If  Congress  were  to  attempt  to  habitually  and  continu- 
ously administer  the  dependencies,  there  would  certainly 
be  a  division  of  responsibility  among  the  trustees  of  the 


Imperial  Obligations  583 

national  trust.  As  one  party  succeeded  another  and  one 
Congress  succeeded  another,  each  would  disclaim  respon- 
sibility for  the  actions  of  its  predecessor.  A  political 
party  has  no  definite  corporate  form,  and  it  is  hence  ex- 
tremely difficult  to  fix  the  responsibility  for  a  party 
measure.  When  a  party  goes  before  the  people  in  a 
popular  election,  the  issues  which  immediately  affect  the 
welfare  of  the  American  Union  are  likely  to  be  control- 
ling and  the  issues  affecting  the  dependencies  only  sub- 
sidiary. The  habitual  and  constant  administration  of  the 
dependencies  by  the  President  concentrates  the  responsi- 
bility for  every  act,  in  the  first  instance,  upon  him.  All 
persons  or  communities  claiming  to  have  been  injured  in 
the  administration  of  the  trust  know  exactly  to  whom  to 
apply  for  redress.  If  Congress  were  to  act  as  a  superin- 
tending body  to  supervise  and  control  the  action  of  the 
President,  this  would  not  operate  to  divide  the  responsi- 
bility in  the  sense  in  which  that  expression  is  used.  If  it 
is  agreed  by  all  parties  concerned  that  one  trustee  shall 
act  habitually  and  constantly  and  the  other  superintend 
and  control  his  action,  there  is  no  division  of  responsi- 
bility. The  trustee  who  acts  habitually  and  constantly 
is  subject  to  have  his  acts  nullified  by  his  co-trustee;  but 
if  the  co-trustee  fails  to  nullify  them  within  a  reasonable 
time,  he  ratifies  them,  and  both  become  jointly  responsi- 
ble. The  method  of  dividing  the  functions  of  the  trus- 
teeship between  an  acting  trustee  and  a  superintending 
trustee  is  one  frequently  adopted  for  the  very  purpose 
of  more  firmly  fixing  the  responsibility  for  action.  A 
superintending  trustee  who  should  not  nullify  an  act 
done  by  the  acting  trustee  which  was  in  violation  of  the 
trust  would  be  held  as  strictly,  if  not  more  strictly,  re- 
sponsible than  if  he  had  investigated  the  act  of  his  co- 
trustee and  had  approved  it.  The  requirement  of  good 
administration  of  trusts  that  there  should  be  no  division 
of  responsibility  is,  therefore,  complied  with  if  the  Presi- 


584  The  Administration  of  Dependencies 

dent  is  recognized  as  the  habitual  and  constant  adminis- 
trator and  Congress  the  superintending  administrator. 

If  Congress  were  to  be  regarded  as  the  habitual  and 
constant  administrator  of  the  dependencies,  there  would 
be  no  possibility  of  keeping  accurate  records  concerning 
the  performance  of  the  trust  which  would  be  in  such 
shape  that  they  could  be  easily  referred  to  and  under- 
stood. It  is  quite  possible  for  a  trustee  to  maladminister 
a  trust  who  allows  every  one  to  be  familiar  with  all  his 
acts  of  trusteeship  as  they  occur.  If  he  keeps  no  records, 
he  is  almost  certain  to  maladminister  the  trust,  however 
good  his  intentions.  The  action  of  Congressional  com- 
mittees, though  open  to  the  public,  is  rarely  digested  and 
recorded  so  as  to  be  convenient  for  future  reference,  and, 
in  the  multitude  of  affairs  and  the  haste  with  which  they 
must  be  disposed  of,  it  is  impossible  to  keep  careful  and 
systematic  records.  On  the  other  hand,  systematic 
records  of  the  action  of  the  President  in  the  habitual  ad- 
ministration of  dependencies  could  be  kept,  and  thus 
every  act  of  importance  exposed  not  only  to  the  public 
criticism  of  the  moment,  but  to  the  public  criticism  of 
the  future.  Nothing  tends  to  good  administration 
equally  with  the  necessity  of  making  an  immediate  record 
of  every  act  as  it  occurs,  for  public  inspection  and 
criticism. 

The  requirement  of  coherency  and  continuity  of  ad- 
ministration can,  it  would  seem,  never  be  attained,  should 
Congress  undertake  the  habitual  and  constant  adminis- 
tration of  the  dependencies.  As  the  exponent  of  party 
government,  its  policy  must  inevitably  change  with  the 
change  of  parties.  Proceeding,  as  it  inevitably  must, 
without  adequate  record  of  past  action  and  without  the 
opportunity  for  the  patient  and  slow  investigation  of 
complicated  facts,  each  act  will  stand  separate  and  apart 
from  all  previous  acts,  and  will  represent  only  the  result 
of  the  combined  common  sense  of  the  particular  Con- 


Imperial  Obligations  585 

gress,  applied  to  such  facts  as  it  may  happen  to  have  be- 
fore it.  On  the  other  hand,  it  is  possible  to  establish  an 
advisory  tribunal  to  assist  the  President  in  his  habitual 
and  constant  administration  of  the  dependencies,  which 
shall  be  entirely  free  from  the  control  of  party  govern- 
ment and  which  shall  act  only  after  careful  investigation 
of  all  the  facts  and  keep  a  record  of  its  investigations  and 
conclusions  which  can  be  readily  referred  to  at  any  time 
in  the  future.  If  coherency  and  continuity  of  adminis- 
tration are  essential  to  good  administration  of  depen- 
dencies, it  seems  obvious  that  the  habitual  and  constant 
administration  of  them  should  be  vested  in  the  President. 
On  this  subject,  perhaps  no  one  is  better  qualified  to 
speak  than  M.  Paul  Leroy-Beaulieu,  the  great  traveller 
and  student  of  colonial  economic  and  political  problems. 
He  regards  this  feature  of  the  administration  of  depen- 
dencies as  the  most  important  of  all.  The  final  words 
of  his  great  work,  De  la  Colonisation  chez  les  Peuples 
Modernes,  of  which  the  fourth  edition  was  published  in 
1 89 1,  are  these: 

It  is  necessary  to  bring  to  this  work  of  the  State  a  great 
store  of  reflection  and  intelligence,  much  moderation,  a  pro- 
found sentiment  of  justice,  and  above  all  a  high  regard  for 
coherency  and  continuity  in  the  administration  (<?/  surtout 
beaucoup  d' esprit  de  suite).  It  is  apart  of  the  duty  of  the 
State  to  set  itself  the  task  of  establishing  its  political  direction 
and  control  in  such  manner  as  to  interfere  as  little  as  possible 
with  native  populations,  in  such  manner  as  to  change  them 
gradually,  in  such  manner  that  their  rights  will  be  respected 
and  wars  with  them  will  be  avoided. 

The  relation  of  the  Imperial  State  to  its  dependencies 
is,  however,  as  has  been  shown,  not  a  mere  relationship 
of  trusteeship.  It  is  at  the  same  time  a  trustee,  and  the 
Chancellor  which  finally  adjudicates  the  terms  of  the 
trust.     It  needs  no  argument  to  show  that  a  great  body 


586  The  Administration  of  Dependencies 

of  elected  representatives  is  incapable,  in  the  very  nature 
of  things,  of  adjudicating  the  terms  of  a  private  trust 
which  is  left  indistinct  and  indefinite  as  respects  the 
means  and  instrumentalities  which  the  trustee  is  to  use 
and  even  in  respect  to  the  end  and  purpose  of  the  whole 
trust.  It  is  equally  incapable,  in  the  nature  of  things,  of 
adjudicating  the  terms  of  a  public  trust  of  this  kind.  It 
is  one  thing,  however,  to  adjudicate  the  terms  of  such  a 
trust,  and  quite  another  and  different  thing  to  revise, 
occasionally,  the  adjudications  made  concerning  the 
terms  of  the  trust,  by  some  other  tribunal.  One  may 
successfully  superintend  a  work  who  has  not  the  technical 
knowledge  sufficient  to  enable  him  to  solve  the  habitual 
and  constant  problems  which  are  arising  in  the  execution 
of  the  work.  Moreover,  many  of  the  great  problems 
arising  in  the  administration  of  dependencies  are  incapable 
of  any  solution  which  can  be  absolutely  said  to  be  correct, 
and  such  problems  have  to  be  solved  according  to  the 
educated  public  sentiment  of  the  whole  people  of  the 
American  Union,  with  respect  to  which  Congress  is  pe- 
culiarly qualified  to  speak. 

From  whatever  standpoint,  therefore,  the  matter  is 
viewed,  it  seems  to  be  logically  indicated  that  the  Presi- 
dent should  be  the  representative  of  the  American  Union 
in  the  habitual  and  constant  performance  of  its  Imperial 
obligations,  and  that  the  Congress  should  represent  the 
Union  in  the  performance  of  these  same  obligations  as 
the  superintendent  of  the  President.  Such  an  arrange- 
ment has  no  tendency  whatever  toward  monarchy,  heredi- 
tary or  temporary.  All  power  in  the  Empire  is  recognized 
as  emanating  from  all  the  people  of  the  Empire,  who 
have  selected  a  part  of  themselves  to  form  an  Imperial 
State  which  is  the  Disposer  of  the  affairs  of  the  Empire, 
and  who  have  divided  all  governmental  power  in  the 
Empire  between  the  Imperial  State  and  the  remain- 
der of   the  people  of  the  Empire  recognized  as  States 


Imperial  Obligations  587 

formed  according  to  natural  circumstances  and  conditions. 
All  power  exercised  by  the  American  Union,  when  acting 
as  the  Imperial  State,  is  regarded  as  emanating  directly 
from  all  the  people  of  the  Union,  and  indirectly  from  all 
the  people  of  the  Empire.  The  President  acts  primarily 
as  the  representative  of  all  the  people  of  the  Union  and 
secondarily  as  the  representative  of  all  the  people  of  the 
Empire.  Because  the  trust  which  he  performs  is  one  re- 
quiring continuity  and  coherency  of  action,  it  does  not 
follow  that  the  person  who  occupies  the  office  of  Presi- 
dent may  not  be  changed  as  often  as  the  people  see  fit. 
It  is  only  necessary  that  the  President's  advisory  body, 
which  has  the  active  charge  of  the  administration  in  be- 
half of  the  President,  should  not  change  with  the 
President. 

If  it  be  the  fact,  as  it  seems  to  be,  that  the  tendency 
in  all  States  which  are  engaged  to-day  in  the  administra- 
tion of  dependencies  is  toward  placing  the  immediate 
and  daily  charge  of  them  in  the  hands  of  the  Chief  Ex- 
ecutive of  the  Imperial  State,  this  action  is  due  to  the 
fact  that  the  enormous  trust  undertaken  can,  according 
to  the  enlightened  opinion  in  those  States,  based  on 
experience,  be  performed  only  in  this  manner. 

If  it  be  granted  that  the  trust,  in  order  to  be  well  per- 
formed, must  be  placed  in  the  immediate  and  direct 
charge  of  the  President,  subject  to  the  supervision  and 
control  of  Congress,  the  question  of  the  administration 
of  dependencies  becomes  simply  one  of  securing  an  ex- 
pert administration  by  the  President;  and  as  the  Presi- 
dent must  necessarily  act  through  subordinate  advisers 
and  officials,  the  question  becomes  one  of  securing  ex- 
pert official  action  and  expert  advice. 

In  ascertaining  the  character  of  the  public  office  which 
ought  to  have  charge  of  the  administration  of  the  depend- 
encies, it  is  necessary,  of  course,  to  consider  the  nature 
of  the  duties  performed  by  this  office.     At  the  present 


588  The  Administration  of  Dependencies 

time,  it  is  recognized  that  all  the  duties  of  the  public 
offices  of  the  American  Government  having  charge  of 
the  administration  of  affairs  in  time  of  peace  are  divided 
between  various  Cabinet  officers,  all  of  whom  may  be 
classified  as  falling  into  two  great  Departments  —  the 
Department  for  Home  Affairs  and  the  Department  for 
Foreign  Affairs.  The  duties  of  an  office  which  should 
be  charged  with  the  administration  of  dependencies 
would  be  entirely  different  from  the  duties  of  either  the 
Home  Office  or  the  Foreign  Office.  The  Home  Office 
is  concerned  with  carrying  out  the  commands  of  the 
Constitution  and  the  Congress  relating  to  home  affairs, 
and  the  Foreign  Office  in  making  treaties  and  contracts 
with  foreign  States.  The  Office  having  charge  of  the 
administration  of  the  dependencies — the  Imperial  Office 
— would  have  the  function  of  executing  the  trust  assumed 
by  the  American  Union  towards  distinct  external  States 
standing  in  a  permanent  and  constitutional  relationship 
toward  the  Union.  The  function  of  the  Imperial  Office 
— the  Department  for  Imperial  Affairs — would  therefore 
be  entirely  different  from  the  function  of  either  of  the 
other  great  Departments.  The  Imperial  Department, 
therefore,  should  be  entirely  distinct  from  all  other  De- 
partments. 

Considering  the  nature  of  the  duties  of  the  Office — the 
performance  of  a  trust — it  would  seem  that  it  should  be 
vested  in  a  single  Secretary  of  State  rather  than  in  a 
Secretarial  Board,  though  this  would  be  a  matter  to  be 
determined  by  expediency  as  experience  would  dictate. 

The  Secretary  of  State  for  Imperial  Affairs  would,  of 
course,  be  the  President's  representative,  and  the  advisory 
Council  would,  of  course,  be  attached  to  the  Imperial 
Office;  and  the  Imperial  Secretary  would  act,  or  would 
advise  the  President  or  the  Congress  regarding  action, 
only  after  consultation  with  the  Imperial  Council,  in  the 
same  way  as  the  Secretary  of  State  for  India  in  Great 


Imperial  Obligations  589 

Britain  acts  only  after  advising  with  the  Council  for  India, 
the  Minister  for  the  Colonies  in  France  after  advising 
with  the  Conseil  Sup&ieur  des  Colonies,  and  the  Imperial 
Chancellor,  in  Germany,  acting  as  Minister  for  Foreign 
Affairs  and  ex  officio  as  Minister  for  the  Colonies,  after 
advising  with  the  Kolonialrath. 

How  such  an  Imperial  Council  should  be  composed, 
what  should  be  the  term  of  ofifice  of  its  members,  whether 
it  should  be  so  constituted  that  its  membership  should  be 
changed  gradually,  and  other  questions  of  like  nature, 
are  matters  of  expediency  which  are  beyond  the  scope  of 
this  work.  The  general  principles  upon  which  the 
Council  should  be  constituted  are,  it  would  seem,  first, 
that  it  should  always  contain  persons  expert  in  the  gen- 
eral art  of  government,  persons  expert  in  the  science  of 
the  administration  of  dependencies  and  persons  actually 
familiar  with  local  circumstances  and  conditions  in  the 
dependencies,  and  second,  that  it  should  be  so  consti- 
tuted as  to  be  removed  as  far  as  possible  from  the  in- 
fluence of  party  politics. 

The  placing  of  the  immediate  and  daily  charge 
of  the  administration  of  the  affairs  of  the  depend- 
encies in  the  hands  of  the  President  advised  by  a 
Council  of  experts  would  still  leave  a  most  important 
field  of  operation  for  the  Congress.  It  would  not  only 
superintend  and  control  the  action  of  the  President,  but 
would  determine  for  the  Union  and  for  the  Empire  all 
the  great  questions  of  national  and  Imperial  policy  and 
would  give  the  final  ratification  to  those  great  Imperial 
dispositions  or  settlements,  by  which  the  forms  of  gov- 
ernment in  the  dependencies  are  established  or  amended, 
and  by  which  the  dependencies  are  federated  or  united  as 
their  local  interests  may  dictate.  Whenever  it  acted, 
it  would  be  the  responsible  representative  of  the  Ameri- 
can Union  and  the  Supreme  Disposer  of  the  Empire. 
It  would  finally  adjudicate  and  execute  the  Constitution 


590  The  Administration  of  Dependencies 

of  the  Empire,  either  affirming  or  disaffirming,  in  whole 
or  in  part,  the  decrees  of  the  President.  It  would  have 
the  advantage  of  having  had  the  whole  subject  carefully 
gone  over  by  the  President  and  his  expert  advisers,  and 
could  obtain  from  them  the  facts  within  their  knowledge 
and  have  the  benefit  of  their  advice,  in  the  same  way 
that  a  Supreme  Court  of  Appeals  has  the  benefit  of  the 
finding  of  facts,  the  opinion  and  the  judgment  of  the 
court  below. 

The  Congress,  taking  up  occasionally,  and  under  such 
circumstances,  matters  of  importance  arising  in  the  ad- 
ministration of  dependencies,  would  undoubtedly  be  able 
to  make  as  wise  a  disposition  of  them  as  any  body  of 
men.  Questions  so  presented  to  Congress  would  be  pre- 
sented in  such  a  way  that  party  politics  would  have  the 
least  possible  effect  upon  their  decision.  A  decision  by 
Congress  under  such  circumstances,  even  though  adverse 
to  that  of  the  President,  would  not  necessarily  tend  to 
weaken  the  authority  of  the  American  Union  or  the  au- 
thority of  the  President  in  the  dependencies. 

As  the  trust  assumed  by  the  American  Union  towards 
its  dependencies  includes  the  duty  to  recognize  their  state- 
hood to  the  utmost  extent  possible,  it  necessarily  follows 
that  all  Local  Governments  of  the  dependencies,  except 
so  far  as  they  are  elected  by  the  people  of  the  depen- 
dencies, are  to  be  regarded  as  Substituted  Governments 
or  Trustee  Governments.  All  the  officials  in  the  depen- 
dencies appointed  by  the  American  Union  are  responsi- 
ble to  the  people  of  the  dependency  as  cestuis  que  trustent, 
and  to  the  American  Union  as  the  Disposer  and  Chancel- 
lor of  the  Empire.  All  the  acts  of  the  Local  Government 
are  to  be  done  for  the  benefit  of  the  people  of  the  de- 
pendency. A  Local  Government  substituted  for  a  Local 
Government  emanating  from  the  people  of  the  depen- 
dency stands  exactly  in  the  position  of  a  conservator  of 
a  private  individual.     It  is  no  more  the  duty  of  such 


Imperial  Obligations  591 

a  Substituted  and  Trustee  Government  to  act  for  the 
benefit  of  the  American  Union  than  it  would  be  for  a 
conservator  to  act  for  the  benefit  of  the  Chancellor  before 
whom  he  must  render  an  account.  Collusion  between 
the  American  Union  and  such  a  Substituted  and  Trus- 
tee Government  to  obtain  any  part  of  the  property  of  the 
people  of  the  dependency  would  be  equally  as  immoral 
and  culpable  as  collusion  between  the  Chancellor  and 
the  conservator  of  a  private  individual  to  procure  for  the 
Chancellor  a  part  of  the  property  of  the  individual  under 
guardianship. 

In  the  Federal  Empire,  the  Governor  of  a  dependency, 
alone  in  the  Local  Government,  exercises  inconsistent 
functions.  He  is  at  once  responsible  to  the  people  of 
the  dependency,  and  the  Vice-Disposer  and  Vice-Chan- 
cellor representing  the  American  Union.  This,  however, 
is  nothing  novel,  as  the  Chief  Executive  must,  in  every 
State,  exercise  inconsistent  functions  and  harmonize 
them  all  toward  a  common  end. 

The  form  of  government  in  dependent  States  of  a 
Federal  Empire  may  be  republican,  monarchical,  or 
oligarchical.  In  such  case,  the  function  ordinarily  ex- 
ercised by  the  Governor  of  a  dependency  would  be 
divided  between  two  personalities.  The  local  elective 
Governor  or  the  local  monarch  or  the  local  oligarchy 
would  exercise  the  powers  of  the  local  Chief  Executive, 
and  an  Imperial  Governor  would  guard  the  Imperial 
interests. 

While  the  system  of  administering  the  dependencies 
through  the  President  advised  by  an  Imperial  Council, 
under  the  supervision  and  control  of  Congress,  is  obvi- 
ously applicable  to  the  administration  of  the  Territories 
of  the  United  States  (by  "Territories  "  meaning  the  ad- 
jacent dependencies  on  the  North  American  Continent 
destined  by  nature  for  incorporation  into  the  American 
Union),  there  are  many  reasons  of  expediency  for  not 


592  The  Administration  of  Dependencies 

applying  it.  Congressional  government  of  the  Terri- 
tories, to  the  exclusion  of  administration  by  the  Presi- 
dent, has  been  a  fact  for  nearly  a  century.  The 
Territories  have  been  treated  as  outlying  municipalities 
of  the  Union  under  a  regime  of  assimilation  to  the 
utmost  extent  possible,  and  have  accepted  this  regime 
because  it  was  accompanied  by  the  promise  of  member- 
statehood  in  the  Union.  Congressional  government 
has,  however,  consisted  in  establishing  a  form  of  gov- 
ernment under  an  express  or  implied  promise  of  ulti- 
mate statehood  in  the  Union  and  then  allowing  the 
Territory  to  grow  up  substantially  in  its  own  way  and 
according  to  its  own  will.  Under  the  circumstances,  this 
policy  has  perhaps  worked  as  well  as  any,  but  the  fact 
that  it  has  worked  well  would  seem  to  be  due  to  the  cir- 
cumstances, rather  than  to  any  virtue  in  the  plan  itself. 
The  problem  of  administering  the  Territories  of  the 
United  States,  until  the  acquisition  of  Alaska  in  1867, 
was  presented  in  the  very  simplest  form  in  which  a  prob- 
lem in  the  administration  of  dependencies  could  possibly 
arise.  A  marvellously  rich  country  lying  on  the  frontier 
of  the  Union,  unoccupied  except  by  wandering  tribes 
(which  have  very  properly  been  restricted  within  cer- 
tain territorial  limits  under  their  tribal  governments 
until  such  time  as  they  shall  be  suited  for  incorporation 
into  the  population  of  a  State  of  the  Union)  was 
colonized  without  difficulty  by  the  population  of  the 
Union.  Nothing  was  required  of  the  Union  except  to 
fix  the  boundaries  of  new  States  and  to  prescribe  the 
forms  of  government  adapted  to  the  population  of  the 
Territory  as  it  should  gradually  grow  towards  statehood 
in  the  Union.  The  principal  thing  to  be  done  was  to 
incorporate  these  continental  Territories  into  the  Ameri- 
can Imperial  Tariff-Union,  and  to  compel  them  otherwise 
to  contribute  equally  to  the  common  defence  and  welfare 
by  taxation,  which,  on  account  of  the  peculiar  circum- 


Imperial  Obligations  593 

stances,  it  was  right  and  proper  to  make  uniform  with 
similar  taxation  in  the  States  of  the  Union.  These 
Territories,  being  not  only  under  promise  of  statehood, 
but  under  compulsion  to  become  States  of  the  Union 
whenever  the  Union  saw  fit,  could  properly  be  treated, 
in  return  for  this  privilege  and  in  consideration  of  this 
necessity,  as  being  under  the  sole  control  of  Congress, 
even  though  this  resulted  in  their  being  taxed  according 
to  the  mere  will  of  a  legislative  body  in  which  they  were 
not  represented. 

Where  statehood  in  the  Union  for  a  dependency  is 
doubtful,  or  where  such  statehood  is  certain  to  be  denied 
and  must  be  denied,  in  the  nature  of  things,  out  of  mere 
justice  to  the  dependency.  Congressional  administration 
of  the  dependency  loses  its  sole  justification.  To  ascer- 
tain the  duty  of  the  American  Union  towards  such  a 
dependency,  it  is  necessary  to  put  ourselves  in  the  place 
of  the  dependency  by  studying  the  actions  and  thoughts 
of  our  Revolutionary  ancestors  when  they  were  inhabi- 
tants of  dependencies  of  the  State  of  Great  Britain,  and 
to  supplement  this  study  by  an  examination  of  the  theory 
and  practice  of  those  who  have  had  to  meet  similar  prob- 
lems. 

All  the  insular  dependencies  of  the  Union  and  Alaska 
are  probably  destined  never  to  be  incorporated  into  the 
Union  as  States,  because  it  is  best  for  them  and  for  the 
Union  that  they  should  permanently  remain  in  a  rela- 
tionship of  dependence  on  the  Union.  In  the  latter  re- 
lationship, they  can  properly  have  a  higher  degree  of 
statehood  than  in  the  former.  Under  a  well-balanced 
and  expert  administration  by  the  American  Union,  as 
their  Imperial  State,  they  can  have  that  distinct  com- 
munity life  which  their  isolated  position  makes  necessary. 
With  respect  to  them,  an  Imperial  Department  of  the 
Government  of  the  Union,  and  an  Imperial  Council,  so 
arranged  as  to  form  and  maintain  a  proper  balance 
38 


594  The  Administration  of  Dependencies 

between  the  interests  of  all  parts  of  the  American  Empire 
and  to  skilfully  adjust  the  constantly  changing  relations, 
is,  according  to  American  traditions,  a  necessity.  With 
respect  to  them,  the  work  of  administration  must  be  done 
by  the  President  and  his  advisers,  as  the  expert  part  of 
the  Government  of  the  American  Union,  under  the 
superintendence  of  Congress. 

It  must  be  expected  that  the  inhabitants  of  these  de- 
pendencies will,  if  Congressional  government  is  pushed 
too  far,  follow  the  precedent  established  by  the  American 
Colonies  in  the  time  of  the  American  Revolution  and 
insist  that  they  are  States  naturally  free  and  equal  with 
other  States,  that  they  are  in  a  federal  union  with  the 
American  Union,  that  Congress  is  not  their  Supreme 
Legislature,  and  that  their  connection  with  the  Union  is 
through  the  President.  It  will  apparently  be  the  part 
of  wisdom  for  the  American  Union  to  forestall  such  a 
state  of  things  by  adopting  the  theory  of  Dickinson  and 
Lord  Chatham  and  recognizing  the  President,  advised  by 
a  Secretary  of  State  for  Imperial  Affairs  and  an  Imperial 
Council  composed  of  statesmen  and  men  familiar  with 
colonial  affairs,  as  the  habitual  and  constant  administrator 
of  the  dependencies,  and  the  Congress  as  the  "august 
body"  or  great  Interstate  Tribunal  of  the  Empire  to 
which  the  insular  and  remote  dependencies  may  look  for 
a  general  superintendence  of  the  affairs  of  the  American 
Empire. 

The  District  of  Columbia,  as  has  been  already  no- 
ticed, stands  in  an  entirely  different  relation  to  the 
Union  from  any  other  dependency.  By  the  express  pro- 
vision of  the  Constitution,  the  power  of  the  Union  over 
the  District  is  declared  to  be  a  power  "to  exercise  ex- 
clusive legislation  in  all  cases  whatsoever  " — that  is,  to 
exercise  the  power  of  legislation,  subject  to  the  restric- 
tions of  the  Constitution  of  the  United  States,  to  the  ex- 
clusion of  any  other  Government  whatever.     The  Union, 


Imperial  Obligations  595 

therefore,  exercises  over  the  District  exactly  the  power 
which  the  State  of  Great  Britain,  in  the  Act  of  1766, 
claimed  to  have  the  right  to  exercise  over  the  American 
Colonies,  subject  to  the  restrictions  of  the  Constitution. 
The  District  of  Columbia,  therefore,  has  no  inherent 
right  of  statehood,  and  not  even  an  inherent  right  of  local 
self-government.  Though  the  inhabitants  are  protected 
in  their  individual  rights  by  the  Bill  of  Rights  in  the 
Constitution,  their  political  rights  are  only  such  as  the 
Congress  may  see  fit  to  bestow  upon  them. 

It  does  not  follow,  however,  that  the  Congress  has 
the  moral  right  to  assubjectize  the  inhabitants  of  the  Dis- 
trict to  its  own  mere  will,  as  respects  their  political  status. 
They  are  entitled  morally  to  all  political  rights  not  incon- 
sistent with  the  welfare  of  the  Union.  The  object  of  the 
framers  of  the  Constitution,  as  the  debates  in  the  Conti- 
nental Congress  during  the  years  1783  and  1784,  and  in 
the  Constitutional  Convention  show,  was  to  prevent  the 
action  of  Congress  from  being  confused  with  or  influ- 
enced by  the  politics  of  any  city  or  State  in  the  Union. 
The  politics  the  effect  of  which  was  thus  guarded  against 
were  the  politics  arising  from  local  elections  of  the  legis- 
lative and  executive  officers  by  popular  vote,  which  in- 
volved party  government  and  intense  partisan  feeling. 
The  inhabitants  are  morally  entitled  to  as  much  control 
over  the  local  affairs  of  the  District  as  it  is  possible  for 
them  to  have  without  popular  elections.  The  only  alter- 
native which  can  justly  be  applied  when  popular  govern- 
ment is  impossible  is,  as  has  been  seen,  expert  government. 
The  present  form  of  government,  according  to  which 
Congress,  advised  by  its  Committee  for  the  District  of 
Columbia,  composed  of  members  of  both  the  Senate  and 
the  House,  acts  as  the  Legislature  of  the  District,  and  by 
which  three  commissioners  act  as  the  Executive,  is  a  vast 
improvement  over  all  previous  forms  of  government,  ac- 
cording to  which  the  lands  and  inhabitants  of  the  District 


50  The  Administration  of  Dependencies 

were  first  divided  into  municipalities  with  elective  Govern- 
ments, and  afterwards  were  made  a  Territory  with  an 
appointed  Governor  and  Council  and  an  elected  House  of 
Representatives.  Any  change  in  the  present  arrange- 
ments will  doubtless  not  be  in  the  direction  of  making 
the  Government  in  any  respect  elective,  but  in  the  direc- 
tion of  recognizing  that  the  habitual  and  constant  charge 
of  the  District  ought  to  be  in  the  hands  of  the  President, 
acting  through  a  Cabinet  oflficer,  to  whom  the  present 
Board  of  Commissioners  shall  be  an  Executive  Council, 
and  to  whose  office  there  shall  be  attached  a  Legislative 
Council,  composed  in  part  of  members  of  the  Senate  and 
House,  appointed  by  Congress,  and  in  part  of  inhabitants 
of  the  District  appointed  by  the  President,  which  shall 
have  the  power  of  local  legislation  for  the  District,  subject 
to  the  negative  of  the  Secretary  or  the  President,  and 
subject  at  all  times  to  the  superintending  power  and 
supreme  legislative  authority  of  Congress. 

In  what  has  been  said  will  be  found  the  answer  to  the 
question,  How,  under  an  unwritten  Constitution  of  the 
Federal  Empire,  can  the  private  rights  of  the  inhabitants 
of  the  dependencies  be  protected  against  the  exercise  of 
the  Imperial  power?  As  the  Imperial  power  in  the  Fed- 
eral Empire  is  itself  essentially  a  power  of  adjudication 
and  not  a  power  of  legislation,  every  act  implies  an  ad- 
judication in  which  private  rights  are  considered  and  re- 
spected. In  making  such  adjudications  every  provision 
of  the  Constitution  of  the  United  States  which  protects 
private  rights  is  regarded  as  literally  in  force  in  the  de- 
pendencies when  the  local  circumstances  and  conditions 
of  the  American  Union  and  the  dependency  in  question 
are  the  same  as  respects  the  matter  under  consideration, 
and  as  in  force  to  the  utmost  extent  practicable  under  all 
circumstances  and  conditions. 

But  if  this  is  regarded  as  an  insufficient  protection  of 
private   rights,    it  is  possible   to   institute  a  Council  of 


Imperial  Obligations  597 

Revision  for  all  action  of  the  President  or  the  Secretary 
for  Imperial  Affairs  in  Council,  or  of  Governors  of  de- 
pendencies in  Council,  which  is  claimed  to  violate  private 
rights.  Such  a  Council  of  Revision  ought,  of  course,  to 
be  in  possession  of  all  the  facts  on  which  the  Imperial 
Council  acts,  and  therefore  its  members  ought  to  be  also 
members  (and  the  most  learned  and  judicious  members) 
of  the  Imperial  Council — in  a  word,  the  Council  of  Re- 
vision to  hear  private  causes  arising  under  the  Constitu- 
tion of  the  Empire  ought  to  be  a  Judicial  Committee  of 
the  Imperial  Council. 

If  the  effect  of  the  provision  of  the  Constitution  relat- 
ing to  the  administration  of  dependencies  is,  as  it  seems 
to  be,  to  give  the  Supreme  Court  jurisdiction  of  causes 
arising  under  the  unwritten  Constitution  of  the  Empire, 
because  such  causes  are  at  the  same  time  causes  arising 
under  the  Constitution  of  the  United  States — the  Gov- 
ernment of  the  American  Union  being  responsible  both 
to  the  people  of  the  American  Union  and  the  people  of 
the  American  Empire  to  "dispose  of  and  make  all  need- 
ful rules  and  regulations  respecting  "  the  dependencies — 
an  appeal  would  lie,  as,  of  course,  in  private  causes,  from 
the  Judicial  Committee  of  the  Imperial  Council  to  the 
Supreme  Court  of  the  United  States.  As  the  juris- 
diction of  all  the  Courts  of  the  United  States  except  the 
Supreme  Court,  in  cases  arising  under  the  Constitution 
of  the  United  States,  exists  at  the  will  of  Congress,  all 
jurisdiction  of  cases  arising  both  under  the  Constitution 
of  the  United  States  and  the  Constitution  of  the  Empire 
should,  it  would  seem,  be  denied  to  all  the  inferior  courts 
of  the  United  States,  so  that  all  private  causes  arising 
under  the  Constitution  of  the  Empire  may  be  decided  by 
Imperial  Councils,  subject  only  to  the  revisory  power  of 
the  Supreme  Court  of  the  United  States. 

The  two  other  questions  of  the  administration  of  de- 
pendencies which  are  particularly  under  discussion  at  the 


59^  The  Administration  of  Dependencies 

present  time  are  concerning  the  extent  to  which  a  depend- 
ency may  be  recognized  as  isolated  from  the  Imperial 
State,  and  concerning  the  method  by  which  the  depend- 
encies may  justly  share  with  the  Imperial  State  the  ex- 
pense necessary  for  the  Imperial  defence  and  welfare. 

Applying,  in  the  attempt  to  answer  these  questions, 
the  principles  of  the  Federal  Empire,  it  would  appear 
certain  that,  in  making  disposition  of  the  dependencies, 
the  Imperial  State  may  recognize  them  as  isolated  from 
itself  to  such  extent  as  it  may  think  necessary,  con- 
sidering all  the  conditions  and  circumstances.  The  rela- 
tionship in  the  Federal  Empire  is  primarily  a  relationship 
between  States — not  between  a  Government  and  indi- 
viduals; and  the  fact  that  a  State  is  a  component  part  of 
an  Empire  does  not  necessarily  imply  that  it  must  have 
free  trade  and  intercourse  with  every  other  part  of  the 
Empire.  If  a  State  is  admitted  into  a  Federal  State,  and 
participates  in  the  election  of  its  Central  Government,  it 
does  so  at  the  expense  of  subjecting  itself  to  free  trade 
and  intercourse  with  every  other  State  composing  the 
Federal  State.  The  Member-States  of  a  Federal  Em- 
pire can  properly  be  recognized  as  having  a  much  higher 
degree  of  statehood  than  the  Member-States  of  a  Federal 
State,  and  therefore  a  State  may  often  prefer  to  be  re- 
lated to  an  Imperial  State  as  its  dependency  rather  than 
to  become  a  Member-State  of  a  Federal  State.  It  re- 
sults from  this  that  the  Imperial  State  can,  by  its  dispo- 
sition, give  any  of  its  dependencies  a  special  tariflf  or 
allow  them  to  make  their  own  tariff,  or  can  enter  into  a 
Tariff-Union  with  them  on  any  terms,  and  therefore  on 
the  terms  that  trade  and  intercourse  within  the  Tariff- 
Union  shall  be  free  and  that  the  States  within  the  Tariff- 
Union  shall  exact  the  same  tariff  from  all  the  rest  of  the 
world.  As  guardian  and  conservator,  it  can  allow  its 
ward  to  do  business  for  itself,  or  can  take  it  into  partner- 
ship, according  as  it  may  be  for  the  best  interests  of  both. 


Imperial  Obligations  599 

Presumptively  it  would  seem  that  a  dependency  in  a 
Federal  Empire  is  entitled,  as  a  necessary  incident  of 
its  member-statehood  in  the  Empire,  to  its  own  tariff, 
which  it  ought,  however,  to  modify  in  the  interests  of 
its  related  States,  so  far  as  practicable. 

Applying  the  principles  of  the  Federal  Empire  to  the 
solution  of  the  question  concerning  the  contributions  of 
the  different  parts  of  the  Empire  to  the  Imperial  defence 
and  welfare,  many  of  the  difHculties  surrounding  this 
question  as  it  has  been  heretofore  discussed,  disappear. 
The  Imperial  State  in  the  Federal  Empire  renders  ser- 
vices for  the  dependencies  which  are  not  only  difficult 
and  dangerous  in  themselves,  but  which  are  necessary  for 
the  peace  and  welfare  of  the  whole  community  and  in- 
volve a  continuous  and  immediate  outlay  of  money  for  the 
benefit  of  the  dependencies.  With  the  economic  aspect 
of  the  question,  this  work  is  not  concerned.  Economic 
benefits,  if  they  accrue  at  all  from  the  possession  of  colo- 
nies, accrue  to  individuals,  and  the  benefit  to  the  Imperial 
State  is  only  indirect.  Putting  aside,  therefore,  all  ques- 
tion of  economic  benefits,  the  question  arises,  how  shall 
the  services  of  the  Imperial  State  in  giving  the  dependent 
States  physical  protection  against  external  interference, 
in  providing  them  with  honest  and  stable  Governments 
when  they  are  unable  to  provide  themselves  with  such 
Governments,  and  in  equalizing  commercial  conditions 
between  the  different  parts  of  the  Empire  and  between 
the  Empire  and  foreign  nations,  be  compensated? 

The  American  Union  is  not  bound  by  tradition  or 
otherwise  to  the  proposition  that  it  cannot  adjudicate  the 
proportional  contributions  which  the  different  parts  of 
the  American  Empire  shall  make  to  its  support,  or  to  the 
proposition  that  it  cannot  enforce  such  adjudications  by 
process  of  execution.  It  is  simply  committed  to  the  prop- 
osition that  it  cannot  tax  dependencies  by  the  action  of  its 
own  legislative  body,  acting  according  to  its  mere  will. 


6oo  The  Administration  of  Dependencies 

If,  therefore,  the  American  Union  accepts  the  theory 
for  which  the  American  Colonies  fought  in  the  Revolu- 
tion, and  admits  its  power  over  the  dependencies  to  be 
only  a  power  of  disposition,  it  may  adjudicate  the  con- 
tributions of  the  different  parts  of  the  Empire  along  with 
all  other  matters  of  Imperial  administration,  and  should 
it  ever  become  necessary  to  enforce  the  payment  of  such 
just  and  reasonable  contributions  from  any  part  of  the 
Empire,  the  American  Union  would  be  not  only  justi- 
fied, but  morally  obligated  to  enforce  such  contribution. 

It  is  undoubtedly  true  that  in  making  such  adjudica- 
tions, the  American  Union  would  be,  as  Burke  said,  "a 
judge  in  its  own  cause."  It  would,  however,  be  a  judge 
in  its  own  cause  from  the  necessity  of  the  case.  That  it 
should  judge  in  such  a  case,  therefore,  could  not  be 
charged  to  it  as  a  wrong  act.  Where  one  is  obliged  to 
judge  in  his  own  cause,  such  obligation  increases  enor- 
mously the  moral  responsibility.  It  necessitates  the  re- 
duction of  every  question  which  must  be  so  decided  to  a 
cold,  dry,  and  scientific  basis  to  the  very  utmost  extent 
possible.  If  all  questions  arising  in  the  administration 
of  the  dependencies  are  in  fact  decided  on  such  a  basis, 
there  is  no  reason  in  principle  or  in  tradition  why  any 
question  should  be  excepted  from  the  power  of  the 
American  Union  to  decide. 

The  Imperial  obligation  does  not  rest  upon  the  Presi- 
dent and  Congress  alone.  The  ultimate  responsibility 
for  the  proper  execution  of  the  trust  is  upon  the  people 
of  the  American  Union,  and  means  must  be  provided 
for  educating  the  public  sentiment  so  that  the  people  of 
the  American  Union  may  be  in  a  position  to  superintend 
both  the  President  and  the  Congress.  They  must  estab- 
lish institutions  for  the  training  of  youth  in  the  science 
of  the  administration  of  dependencies,  for  promoting  the 
interchange  of  ideas  between  experts  and  disseminating 
these  ideas,  and  for  educating  public  sentiment  on  this 


Imperial  Obligations  60 1 

subject  by  object-lessons,  through  expositions  and  mu- 
seums. Perhaps  the  most  important  part  of  the  Imperial 
obligations  is  that  the  people  should  provide  for  the  ed- 
ucation of  picked  men  to  carry  out  the  details  of  the 
trust.  Instrumentalities  of  government,  however  well 
arranged,  will  not  alone  accomplish  a  good  administra- 
tion of  the  dependencies.  A  good  administration  of  the 
trust  can  only  be  given  by  experts,  and  these  the  people 
of  the  American  Union  must  continuously  furnish  from 
their  midst. 

Undoubtedly  the  performance  of  Imperial  obligations 
entails  a  constant  effort  by  the  American  people.  Realiz- 
ing this,  many  persons  are  asking  the  question.  Why 
should  the  people  of  the  American  Union  undertake  Im- 
perial obligations?  They  object  that  the  exercise  of  the 
Imperial  power,  under  this  conception  of  the  Imperial 
obligations,  is  not  necessarily  profitable  from  a  pecuniary 
standpoint.  This  objection  is  undeniably  well  taken. 
The  idea  of  the  Imperial  power  as  a  power  to  perform 
services  for  other  States  is  wholly  inconsistent  with  the 
idea  of  monopoly  or  exploitation,  as  Mr.  Spencer  Wilk- 
inson has  well  pointed  out,  in  the  passage  above  quoted. 
It  implies  opening  new  markets,  not  for  the  Imperial 
State,  but  for  all  the  world.  To  the  "merchants"  who, 
to  quote  Lord  Bacon,  "look  ever  to  the  present  gain," 
it  is  better  to  let  some  other  State  exercise  such  Imperial 
power  and  for  America  to  take  the  benefit  of  the  work. 
But  to  those  who  do  not  "look  ever  to  the  present  gain  " 
and  whose  eyes  are  set  on  a  goal  farther  off  and  higher 
up,  there  appears  to  be  both  a  moral  compulsion  which 
compels  the  American  Union  to  perform  such  obligations 
when  they  come  upon  them  in  the  ordinary  course  of 
events,  and  a  pleasure  in  performing  them  well.  The 
State  which  shirks  obligations  because  they  are  difficult 
or  dangerous  pays  the  penalty  of  the  individual  who 
shirks  such  obligations— rit  sinks  into  insignificance. 


6o2  The  Administration  of  Dependencies 

But,  these  considerations  aside,  there  seems  to  be  no 
alternative.  Imperial  obligations  impose  themselves  in 
the  very  process  of  community  life.  The  Federal  Empire 
is  the  outgrowth  of  democratic  and  republican  principles. 
The  Imperial  State  recognizes  itself  as  under  a  trustee- 
ship toward  every  part  of  the  whole  Empire,  and  hence 
as  the  delegate  and  representative  of  the  dependencies, 
as  political  persons  or  States.  Where  Imperial  States 
base  their  actions  upon  these  principles,  dependencies 
which  are  abundantly  strong  enough  to  become  inde- 
pendent prefer  not  to  do  so,  and  weak  dependencies  re- 
gard the  relationship  as  one  in  which  they  can  take  pride 
and  satisfaction.  Such  a  consent  is  equivalent  to  an 
election  of  the  Imperial  State,  by  the  dependencies,  to 
be  their  Central  Government.  Thus  the  republican  prin- 
ciple of  representation — that  all  governors,  whether  per- 
sons or  States,  are  the  agents  or  trustees  of  the  governed 
— is  preserved.  The  democratic  principle  is  preserved 
because  the  whole  conception  of  a  State  acting  through 
its  representative  Government  as  the  Central  Government 
of  its  related  political  communities  is  impossible  unless 
the  Imperial  State  is  founded  on  democratic  principles; 
and  because  all  power  of  the  Imperial  State  is  regarded 
as  emanating  from  a  grant  made  by  all  the  people  of  the 
Empire. 

The  Federal  Empire  has  arisen  out  of  the  need  for 
social  and  economic  peace  and  for  equalization  of  eco- 
nomic conditions,  exactly  as  Confederations  and  Federal 
States  arose.  It  is  the  only  form  of  organism  by  which 
the  federative  principle  can  be  extended  beyond  the  limits 
of  lands  occupied  by  a  homogeneous  population  capable 
of  self-government.  Government  of  widely  extended 
and  scattered  lands  and  populations  through  representa- 
tive institutions  is  not  to  be  the  ultimate  substitute  for 
the  administration  of  dependencies  by  Imperial  States. 
On  the  contrary,  administration  of  dependencies  by  Im- 


Imperial  Obligations  603 

perial  States  is  the  final  and  permanent  substitute  for 
representative  Government,  wherever  Government  must, 
in  the  nature  of  things,  extend  itself  beyond  the  limits 
of  lands  occupied  by  a  homogeneous  population  capable 
of  self-government. 

The  Federal  Empire  is,  therefore,  not  a  temporary 
phenomenon  destined  to  disappear;  nor  is  it  a  mere  in- 
complete form  of  a  political  organism  hereafter  to  dis- 
close itself  in  a  complete  form.  It  is  a  naturally  evolved, 
permanent,  and  complete  form  of  political  organism, 
and,  if  it  fails  to  preserve  this  form,  and  divides  itself 
into  its  constituent  parts,  this  is  not  the  result  of  the  law 
of  progress,  but  a  disintegration  due  to  ignorance  and 
incapacity  on  the  part  of  the  people  and  the  Government 
of  the  Imperial  State. 

A  State  can  have  no  higher  ideal  than  to  perform  well 
its  obligations  as  the  Imperial  State  of  a  Federal  Empire. 
To  be  at  once  both  a  Judge  and  a  Ruler  is  to  occupy  the 
most  exalted  position  conceivable,  and,  in  its  possibil- 
ities of  territorial  extent,  the  Federal  Empire  has  no 
limits.  The  Imperial  State  in  such  an  Empire  may  judge 
and  control  and  equalize  between  States  the  most  remote 
possible  from  each  other  and  the  most  diverse  possible 
in  their  languages,  traditions,  and  interests.  Its  action, 
always  intelligent  and  judicious,  and  never  going  beyond 
the  necessity  of  each  case,  is  inevitably  beneficial  and 
makes  for  peace  and  for  that  better  understanding  be- 
tween men  under  all  circumstances  and  conditions  which 
is  the  basis  of  good-will. 

That  America  can  temporarily  perform  the  functions 
of  an  Imperial  State  toward  a  dependent  State  has  been 
shown  in  the  case  of  Cuba.  '  It  is  now  necessary  to  prove 
that  that  can  be  done  habitually  and  constantly  which 
has  been  so  successfully  done  temporarily  and  as  a  mat- 
ter of  emergency.  That  America  will  do  so  there  can 
be  no  doubt ;  but  it  will  be  done  only  by  hard  thinking 


6o4  The  Administration  of  Dependencies 

and  hard  work.  It  will  not  be  done  by  despising  the 
experience  of  other  nations,  but  by  studying  it  and  dar- 
ing to  follow  their  example  where  they  have  succeeded 
in  improving  and  elevating  the  peoples  whose  affairs  they 
have  administered.  It  will  not  be  done  by  those  who 
blindly  worship  the  Constitution  of  the  United  States, 
but  by  those  who,  with  the  principles  of  that  Constitu- 
tion as  their  foundation  and  their  hope,  shall  apply  them- 
selves to  the  task  of  patiently  evolving  the  unwritten 
Constitution  of  the  American  Federal  Empire. 


INDEX 


Act  of  Parliament,  of  1750,  prohibit- 
ing iron  mills  in  American  Colo- 
nies, 133  ;  of  1 75 1,  regulating 
issue  of  bills  of  credit  in  American 
Colonies,  133  ;  of  1767,  suspend- 
ing New  York  Assembly,  179  ;  of 
1767,  imposing  tariff  on  paints, 
etc.,  179,  180;  of  1767,  establish- 
ing Commissioners  of  Customs  in 
American  Colonies,  180  ;  of  1772, 
for  trying  in  England  persons 
charged  with  crime  in  America, 
253;  of  1773,  regulating  issue  of 
bills  of  credit  in  American  Colo- 
nies, 253  ;  of  1774,  for  closing  the 
port  of  Boston,  259  ;  of  1774,  for 
regulating  government  of  Quebec, 

259 

Adams,  John,  his  anti-Imperialist 
views  expressed  in  the  pamphlet, 
Novanglus  and  Massachusettensis, 
280,  281 

Address  to  the  House  of  Commons, 
of  1765,  quotation  from,  167,  168 

Address  to  the  King,  of  1765,  quo- 
tation from,  166,  167  ;  of  1774, 
quotation  from,  288,  289  ;  of  1775, 
quoted  and  discussed,   325,   326, 

329-331 
Address  to  the  People  of  Canada,  of 
1774,  its  purpose  and  effect,  364, 

365 

Address  to  the  People  of  Great 
Britain,  of  1774,  quotation  from, 
288  ;  of  1775,  quoted  and  dis- 
cussed, 326,  332 

Administration  of  dependencies, 
theory  of,  governed  by  view  held 
concerning  their  statehood,  8,  9 

Admiralty,  Courts  of,  in  American 
Colonies,  146-148 

Admission  to  the  American  Union, 
meaning  of,  363 


Agents  for  the  Colonies,  institution 
and  functions  of,  89 

Alaska,  administration  of,  573 

Albany  Congress,  of  1754,  suggests 
American  sub-Empire,  135 

Albany  Plan  of  Union,  of  1754, 
provisions  respecting  dependen- 
cies in,  135-141 

Algeria,  in  charge  of  French  Minis- 
ter for  the  Interior,  480 ;  repre- 
sented in  French  Parliament,  487  ; 
modern  views  of  French  policy 
respecting,  489 

All  needful  rules  and  regulations, 
meaning  of,  in  U.  S.  Constitution, 
462 

Alsace-Lorraine,  character  of  Ger- 
many's problem  respecting,  489, 
490 ;  administration  of,  by  Ger- 
many, 491-493 

American  dependencies,  administra- 
tion of,  537-577  ;  status  of  the 
Local  Legislatures  and  Courts, 
550-553  ;  division  of  administra- 
tion between  Executive  Depart- 
ments, 576,  577;  power  of 
American  Union  to  isolate,  597, 
598  ;  and  to  adjudicate  contribu- 
tions to  the  Imperial  defence,  599, 
600 

American  Empire,  planned  by 
Franklin,  351;  declared  by 
French  Treaties  of  1778,  374- 
399  ;  recognized  by  U.  S.  Consti- 
tution. 445-473 

American  Indians,  Jd'^  Indian  Tribes. 

American  insular  dependencies, 
Presidential  administration,  under 
supervision  of  Congress,  neces- 
sary, 593,  594 

American  Insurance  Company  v. 
Canter  (i  Peters,  449),  decision 
of  Supreme  Court  concerning 
status  of  Colonial  Judiciary,  550. 
551 


605 


6o6 


Index 


Andros,  Sir  Edmund,  acts  of,  as 
Governor-General  of  New  Eng- 
land, 84 

Annual  Register,  of  1763,  quotation 
from,  143 

Anti  -  Imperialist  Party,  positions 
taken  by,  in  Continental  Congress, 
280,  281,  290,  320-334  ;  position 
taken  by,  regarding  Resolution  of 
1784,  in  Congress  of  the  Confed- 
eration, 426 

Articles  of  Confederation,  provisions 
of  Franklin's  draft  of,  relating  to 
the  Empire,  350,  351  ;  of  Dickin- 
son's draft,  352  ;  reasons  for 
omitting  provisions  relating  to 
the  Empire  in,  367-369 

Assimilation,  policy  of,  for  depen- 
dencies, meaning  of,  in  French 
politics,  483  ;  regime  of,  insisted 
upon  by  dissenting  Judges  in  In- 
sular Tariff  Cases,  571,  572 

d'Avenel,  Vicomte,  quotations 
from  his  book,  Richelieu  et  la 
Mdnarckie  Absolue,  11-12, 

B 

Bacon,  Sir  Francis,  leader  in  argu- 
ment in  Case  of  the  Postnati,  34  ; 
assists  in  procuring  Virginia  Char- 
ter of  i6o6,  36 ;  (Lord  Bacon), 
quotations  from  his  Essay  on 
Plantations,  63,  64,  92 

Bancroft,  George,  quotation  from 
his  History  of  the  United  States, 
400,  401 

Belonging  to,  as  meaning  "  depen- 
dent upon,"  in  British-American 
public  law,  110;  in  U.  S.  Consti- 
tution, 458,  459 

Benton,  Thomas  H.,  quotation  from 
his  Historical  and  Legal  Exami- 
nation of  the  Dred  Scott  Case,  553, 

554 

Bermuda,  Island  of,  Franklin  pro- 
poses admission  into  American 
Union,  351 

Bernard,  Sir  Francis,  quotation 
from  his  Select  Letters  on  the 
Trade  and  Government  of  Amer- 
ica, 169-173,  267,  268 

Blachford,  Lord,  in  1885  regarded 
British  Empire  as  temporary,  519 

Blackstone,  Sir  William,  regarded 
American  Colonies  as  conquests, 
297 


Bluntschli,  Dr.  J.  G.,  in  1850  dis- 
tinguished the  Federal  Empire 
from  the  Federal  State,  490 

Board  of  Commissioners  for  Trade 
and  Plantations,  as  Under-Secre- 
tary of  State  for  Imperial  Affairs, 
85-88,  215,  216;  office  abolished 
in  1780,  498 

Boston   Port   Bill  a   war   measure, 

259 

Boulanger,  M.,  statement  concern- 
ing administration  of  French  de- 
pendencies, 481,  482 

Brassey,  Lord,  views  of,  concerning 
an  Imperial  Council,  527 

British  Empire,  administration  of, 
49-151,  191-260,  498-536;  the 
Stamp  Act  a  denial  of,  149 ; 
conception  of,  as  a  permanent 
organism,  505,  506  ;  essentially  a 
federal  organism,  536 

British  Peace  Commissioners  of 
1778,  proposals  of,  384-387 

British  Peace  Overtures  of  1778, char- 
acter of,  and  causes  of  rejection 

of.  377-387 

Burke,  Edmund,  quotation  from  his 
speech  on  American  taxation,  268, 
269  ;  his  resolutions  for  concilia- 
tion, 311  ;  quotation  from  his 
speech  on  his  resolutions  for  con- 
ciliation, 311-313  ;  his  views  con- 
cerning the  Imperial  power,  313- 
315.  338  ;  his  second  conciliatory 
resolutions,  335  ;  in  17S0  secures 
abolition  of  Imperial  Secretariat, 
498 

Burnet,  History  of  his  Own  Times 
quoted,  86 


Cabinet,  (British),  distinguished 
from  Privy  Council,  128,  129 

Calhoun,  John  C,  his  theory  con- 
cerning relationship  of  the  Terri- 
tories   to   the   American    Union, 

553.  554 
Calvin's  Case,  principles  concerning 

dependencies  decided  in,  32-35 
Camden,  Lord,  his  views  concerning 

taxation,  175 
Campbell  v.  Hall,  case  of,  discussed, 

294-297 
Canada,  Franklin's  and  Dickinson's 

proposals  to  admit  into  American 


Index 


607 


Canada — Continued 

Union,  351,  352,  356,  363-366; 
declines  overtures  of  American 
Union  for  reception  into  Union, 
364,  365  ;  Articles  of  Confedera- 
tion relating  to  admission  of,  to 
Union,  372 ;  divided  into  two 
Provinces,  1791,  501  ;  crisis  in, 
1835-1840,  501,  502 

Carolina,  characteristics  of  Charter 
of  1584,  30,  31 ;  of  Charter  of 
1665,  83 

Case  of  the  Postnati,  principles  con- 
cerning dependencies  decided  in, 

31-35 

Chamberlain,  Hon.  Joseph,  views 
of,  concerning  an  Imperial  Coun- 
cil, 527,  528  ;  concerning  Imperial 
power  and  obligation,  536 

Channel  Islands,  administration  of, 
in  1606,  49 

Charles  I.,  grants  Massachusetts  Bay 
Charter  of  1629,  66  ;  grants  Mary- 
land Charter  of  1632,  66  ;  grants 
Province  of  Maine,  1639,  67,  68  ; 
appoints  Imperial  Council  of  1634, 
66 

Charles  II.,  appoints  Council  for 
Foreign  Plantations  in  1660  as 
Imperial  Council,  79 ;  in  1672, 
abolishes  this  Council  and  ap- 
points Council  for  Trade  and 
Plantations  as  Imperial  Under- 
Council,  83,  84 

Charter  of  Compact,  meaning  of,  in 
Resolution  of  1784,  422,  423 

Chatham,  Lord,  quotation  of  his  Bill 
for  settlement  between  Great 
Britain  and  theAmerican  Colonies, 
299-304 ;  his  speeches  in  support 
of  his  Bill,  304-306,  30S ;  his 
speech  opposing  American  inde- 
pendence in  1778,  383,  384.  See 
also  William  Pitt. 

Chesney,  Sir  George,  quotation  from 
his  Indian  Polity,  51 1-5 14 

Citizens  of  the  United  States,  inhab- 
itants of  Northwest  Territory  not, 
435.  436  ;  inhabitants  of  Ameri- 
can dependencies  not.  566,  567 

Colomb,  Sir  John,  quotation  from 
his  Survey  of  Existing  Conditions, 

532,  533 
Colonial     Agents,    institution     and 

functions  of,  89 
Colonial  Committee,  of  French  Gen- 


eral Assembly,  prepares  plan  of 
Constitution  for  Colonies,  475 

Colonial  Council  of  France,  first  in- 
stituted by  Napoleon  I.,  478; 
modern,  its  institution  and  func- 
tions, 480,  481 

Colonial  Council  of  Germany,  its  in- 
stitution and  functions,  494 

Colonial  Legislation  (British-Amer- 
ican), form  of  enacting  clause  of, 
117,  118 

Colonial  Pact,  French  theory  of, 
19-22 

Colonies  of  the  American  Union, 
provided  for  in  Franklin's  draft 
of  Articles  of  Confederation,  350, 

351  ;  provided  for  in  Dickinson's 
draft  of  Articles  of  Confederation, 

352  ;  proposition  of  1777  concern- 
ing their  administration,  370,  371  ; 
provided  for  in  Articles  of  Con- 
federation, 372;  districts  of  North- 
west Territory  recognized  as,  423 

Colonization,  by  Lords  Proprietors, 
30  ;  by  guilds  or  privileged  com- 
panies, 52-54 

Colony,  meaning  of,  90-94  ;  mean- 
ing of,  in  Articles  of  Confedera- 
tion, 366 

Commissioners  for  making  peace 
with  American  Colonies  in  177S, 
their  proposals,  384-387 

Commissioners  for  Trade  and  Plan- 
tations as  Under-.Secretariat  of 
State  for  Imperial  Affairs,  83,  84, 
215,  216 

Committee  of  the  Privy  Council  for 
Plantation  Affairs,  as  Secretariat 
of  State,  218-220 ;  revived  in 
1784,  500  ;  ceased  to  exist  in  1800, 
501 ;  temporarily  revived  in  1849, 
506,  507 

Commonwealth  Parliament,  powers 
exercised  by,  respecting  the  Col- 
onies, 6S-79,  114 

Conditional  power,  distinguished 
from  limited  power  by  the  Conti- 
nental Congress  of  1778,  391- 
396 

Conditional  subjection,  inhabitants 
of  American  dependencies  in  rela- 
tionship of,  395 

Congress  of  the  American  Union, 
claims  to  be  the  successor  of  the 
King  of  Great  Britain  and  Sover- 
eign of  Western  region,  400-409 


6o8 


Index 


Congress  of  the  Confederation, 
power  of,  over  the  American 
dependencies,  378-444  ;  power  of, 
to  negative  colonial  legislation, 
438-440 

Congress  of  the  United  States, 
power  of,  respecting  the  depend- 
encies, 453-473  ;  objections  to 
administration  of  dependencies  by, 
578-580;  as  a  superintending  ad- 
ministrator of  the  dependencies, 

581-587 

Connecticut,  Charter  of  1662 
granted,  82  ;  Charter  forfeited  in 
1687,  84 

Conseil  Sup&ieur  des  Colonies,  es- 
tablished in  1883,  remodelled  in 
1890,  480,  481 

Consent  of  the  governed,  meaning 
of,  in  Declaration  of  Indepen- 
dence, 396-399 

Constitution,  British- American,  of 
1750,  121-127 

Constitution  of  the  British  Empire, 
distinguished  by  Edmund  Burke 
from  British  Constitution,  269 ; 
also  by  the  Continental  Congress, 

344,  349 

Constitution  of  the  United  States, 
proceedings  of  Convention  for 
framing,  445-473  ;  "  extended 
to "  the  Territories,  1850-1890, 
550 ;  its  effect  in  the  depend- 
encies, 552-555 

Constitutional  protectorate,  mean- 
ing of,   353 

Continental  Congress,  proceedings 
of,  at  session  of  1774,  280-293  ; 
recognized  by  Lord  Chatham's 
Bill,  301  ;  issues  and  parties  at 
its  second  session  in  1775,  318- 
349  ;  its  views  concerning  the 
power  of  Parliament,  339,  340 ; 
it  reasons  for  rejecting  informal 
British  peace  overtures  of  1778, 
381,  382 ;  rejects  proposals  of 
British  Commissioners,  1778,  384- 
387 

Council  for  Foreign  Plantations 
(1660-1670),  as  the  Imperial 
Council,  instructions  to,  79-82  ; 
instructions  to,  of  1670,  regarding 
Indian  tribes,  83 

Council  for  India,  in  Great  Britain, 
its  establishment  in  1858,  and 
functions,   51 1-5 14 


Council  for  Trade  and  Plantations, 
of  1672,  as  the  Imperial  Under- 
Council,  83,  84   i, 

Council  of  Commerce,  of  1650,  as 
the  Imperial  Under-Council,  75, 
76  ;  of  1655,  as  the  Imperial  Un- 
der-Council, 77,  78 

Council  of  State,  as  the  Imperial 
Council,  1650-1658,  75-79 

Countries  subject  to  the  jurisdiction 
of  the  United  States,  mentioned 
in  Act  of  Congress  of  1804,  541  ; 
and  in  Thirteenth  Amendment, 
566,  567 

Courts  of  Admiralty  in  the  Ameri- 
can Colonies,  146-148 

Cromwell,  Oliver,  appoints  Council 
of  Commerce,  as  Imperial  Under- 
Council,  77 

Crown,  power  of  the  British,  over 
the  American  Colonies,  244,  245, 
264,  265,  273,  277 


D 


Declaration  of  Independence,  prin- 
ciples of  colonial  relationship  un- 
derlying,341-348;  not  inconsistent 
with  an  American  Federal  Em- 
pire, 396-399 

Declaration  of  Rights  and  Griev- 
ances of  1774  quoted  and 
discussed,  283-285 

Declaration  of  War,  between  Great 
Britain  and  the  American  Col- 
onies, in  1775,  309,  310 

Declaratory  Act  of  1766,  regarding 
the  Imperial  power  of  Great 
Britain,   176-179 

Delegate  in  Congress,  Territorial, 
same  as  Colonial  Agent,  422 

Department  for  Imperial  Affairs,  in 
United  States,  proposed,  588 

Department  of  Colonial  Affairs 
(British),  proposed  in  1764,  20S, 
223;  established  1768,498;  abol- 
ished,   1782,  498  ;  re-established, 

1854,  507 

Dependencies,  defined,  7 ;  their 
characteristics  as  possessing  polit- 
ical personality  or  not,  6-8  ;  with 
the  Imperial  State  constitute  an 
Empire,  8,  g ;  first  use  of  the 
term,  108-110 

Dependencies  of  the  American 
Union,   propositions  of   1777  re- 


Index 


609 


Dependencies — Continued 

lating  to  their  administration,  370, 
371  ;  planned  to  arise  from  con- 
quest m  1776,  374  ;  referred  to  in 
French   Treaties   of    1778,    374- 

376 

Dependencies  of  the  United  States, 
mentioned  in  Act  of  Congress  of 
1804,  541 

Dependent  States,  American  Colo- 
nies so  called  by  Sir  Francis  Ber- 
nard in  1768,  191 

Dependent  upon,  this  expression 
used  in  Act  of  October  3,  1650,  76 

Dickinson,  John,  his  pamphlet,  The 
Late  Regulations  Respecting  the 
British  Colonies  on  the  Continent  of 
America,  157;  quotation  from  The 
Farmer's  Letters,  180-189 ;  his 
criticism  of  James  Wilson's  essay, 
263  ;  quotation  from  his  New  Es- 
say on  the  Constitutional  Power 
of  Great  Britain  over  the  Colonies 
in  America,  iTy-^T]  ;  his  recog- 
nition of  the  Federal  Empire,  279  ; 
elected  to  the  Continental  Con- 
gress and  takes  his  seat,  1774, 
287  ;  his  draft  of  the  Declaration 
on  Taking  up  Arms,  1775,  320- 
322 ;  provisions  relating  to  the 
Empire  in  his  draft  of  Articles  of 
Confederation,  352 

Dilke,  Sir  Charles,  quotation  from 
his  Problems  of  Greater  Britain, 
concerning  an  Imperial  Council, 
526 

Dispose  of,  meaning  of,  in  English 
public  law,  44-46 

Disposition,  meaning  of,  in  French 
public  law,  13,  14 ;  in  English 
public  law,  39-44 ;  in  British 
politics,  143 ;  in  British  public 
law,  295  ;  used  to  describe  the 
Imperial  power  by  the  Continen- 
tal Congress,  348  ;  power  of  the 
American  Union  over  its  depend- 
encies a  power  of,  359-362,  401- 
418,  458,  459  ;  power  of,  includes 
plenary  power  of  regulation,  419- 
444  ;  used  by  Jefferson  as  describ- 
ing the  Imperial  power  in  1787, 
431,  432  ;  used  to  describe  the 
Imperial  power  in  United  States 
Constitution.  458,  459  ;  power  of, 
does  not  include  power  of  aliena- 
tion, 470 


District  of  Columbia,  power  of  Con- 
gress over,  under  United  States 
Constitution,  472  ;  administration 
of,  594-596 

Districts  in  Western  region  both 
"  States"  and  "  Colonies,"  423 

Dominion,  meaning  of,  100-103 

Downes  v.  Bidwell  (\%2  U.  S. ,  244), 
views  of  the  Supreme  Court  con- 
cerning the  Imperial  power  in, 
562-570 

Dred  Scott  Case,  views  of  the  Su- 
preme Court  concerning  the  Im- 
perial power  in,  556,  557 

Duke  of  York,  patent  of  1664  to, 

^3  .  .  . 

Dulany,  Daniel,  quotation  from  his 

Considerations  on  the  Propriety  of 

Imposing    Taxes   on   the  British 

Colonies,  153,  154 

Durham,  Lord,  quotation  from  his 

Report  on  the  Affairs  of  British 

America  (1839),  502,  503 


E 


East  India  Company,  reasons  for 
sending   tea-ships  to  America  in 

1773,  253-257 

Eddy,  Charles  Walter,  views  of, 
concerning  an  Imperial  Council, 
521-523 

Egerton,  Hugh  E.,  quotations  from 
his  History  of  British  Colonial 
Policy,  36,  505,  519,  520 

Elgin,  Lord,  declares  British  Em- 
pire a  permanent  organism,  1850, 
506 

Elizabeth,  Queen  of  England,  her 
policy  respecting  Parliament,  26- 
28 

Emperor  of  Germany,  power  of,  re- 
specting the  dependencies,  491 

Empire,  definition  of  the  modern,  8 

Empire,  the  Federal,  see  Federal 
Empire. 

Enacting  clause,  of  colonial  laws, 
117,  118 

English  Empire,  from  1200  to  1600, 

23 

Expansion  of  the  American  Union, 
Franklin's  views  expressed  in  his 
draft  of  Articles  of  Confederation, 

351 
Expert  government,  defined,  i  ;  im- 
plies conditional  power,  2  ;   may 


6io 


Index 


Expert  government — Continued 
exist  in  any  form  of  State,  2-4  ; 
no   modern   State  wholly  under, 
4 ;    distinguished    from    despotic 
or  paternal  government,  517,  518 

Extension  of  the  Constitution  to  the 
Territories,  meaning  of,  554 


Farmer's  Letters  of  John  Dickin- 
son, quoted  from,  their  purport 
and  effect,  180-189;  criticised  by 
William  Knox,  229-237 

Federal  Empire,  British  Empire  of 
1750  a,  125  ;  defined,  261-279  I 
principles  of,  announced  by  John 
Dickinson,  1774,  279  ;  the  Ameri- 
can ultimatum  to  Great  Britain  a 
demand  for  restoration  of,  289  ; 
recognized  by  Lord  Chatham, 
1775.  308  ;  theory  of,  stated  by 
Gouverneur  Morris  in  his  Observa- 
tions on  the  A  merican  Revolution, 
■  391-395  ;  the  modern  British  Em- 
pire essentially  a,  536  ;  an  evolu- 
tion and  a  permanent  organism, 
602,  603 

Federal-Imperialist  Party,  in  the 
Continental  Congress,  280,  281  ; 
views  of,  expressed  by  the  form 
given  American  ultimatum,  290- 
294  ;  their  position  at  the  second 
session  of  the  Continental  Con- 
gress, 320-322  ;  in  the  Congress 
of  the  Confederation,  position  of, 
concerning  administration  of  the 
Western  region,  426,  431,  433, 
439,  442-444 

Fourteenth  Amendment,  effect  of, 
on  political  status  of  inhabitants 
of  American   dependencies,   566, 

567 

France,  administration  of  its  de- 
pendencies by,  from  1600  to  1787, 
11-24;  from  1787  to  1902,  474- 
489 

Franklin,  Benjamin,  drafts  Albany 
Plan  of  Union  of  1754,  137  ;  quo- 
tation from  his  Reasons  and  Mo- 
tives on  which  the  Plan  of  Union 
was  Formed,  137,  138  ;  examina- 
tion before  the  House  of  Com- 
mons in  1766,  175,  176;  counsels 
with  Lord  Chatham  concerning 
latter's    Bill,    29S  ;    his    Canada 


Pamphlet,  350  ;  his  Plan  for  Set- 
tling  Two  Colonies  West  of  the 
Allegheny  Mountains,  350 ;  re- 
gards the  Union  as  the  Sovereign 
of  the  Western  region,  401 

Freeman,  Edward  A.,  regards  Ger- 
many as  a  Federal  Empire,  490 ; 
views  concerning  Imperial  Feder- 
ation, 521 

French  Colonial  Empire,  of  1600  to 
1750,  21,  24 

French  Colonial  School,  its  estab- 
lishment and  objects,  487 

French  Constitution,  of  1791,  pro- 
visions respecting  the  dependen- 
cies  in,  476  ;  of  1795,  provisions 
on  same  subject  in,  476  ;  of  1800, 
478  ;  of  1814,  478  ;  of  1830,  479  ; 
of  1848,  479 ;  of  1852,  479 ;  of 
1875,  situation  respecting  depend- 
encies under,  479 

French  General  Assembly,  prepares 
plan   for  Colonial   Constitutions, 

475 
French  Minister  for  Commerce,  in 

charge  of  the  Colonies   between 

1881  and  1890,  479 
French  Minister  for  the  Colonies, 

appointed  in  1894,  480 
French  Minister  for  the  Marine,  in 

charge  of  the  Colonies  until  after 

1881,  479 
French  National  Colonial  Congress, 

of  1889,  action  regarding  French 

Imperial  Council,  480,  481 
French  Society  for  the  Abolition  of 

Slavery,  effect  of,  in  the  French 

Colonies,  475 
French   West   Indian   Colonies, 

granted     Local     Assemblies    by 

Louis  XVI.,  474  ;  Civil  War  in, 

475.  477 


General  Courts  of  Virginia  Com- 
pany, as  Imperial  Councils,  57 

George  III.,  opposes  House  of 
Commons,  130 

Georgia,  Charter  granted  in  1732, 
88 

Germany,  character  of  its  Colonial 
Empire,  490 ;  administration  of 
its  dependencies  by,  489-497 

Germany,  Emperor  of,  his  powers 
respecting  the  dependencies,  491 


Index 


6ii 


Gerry,  Elbridge,  his  proposals  con- 
cerning administration  of  North- 
west Territory,  419,  420,  425,  426 

Girault,  Arthur,  quotation  from  his 
Principes  de  Colonisation  et  Legis- 
lation Coloniale,  93,  477,  483 

Government,  popular  and  expert, 
1-4  ;  division  of  powers  between 
instrumentalities  representing,  4- 
6 ;  acting  and  superintending 
agencies  of,  5 

Government  by  affection,  as  substi- 
tute for  disposition,  540,  541 

Grenville,  Hon.  George,  assists 
William  Knox  in  writing  the 
pamphlet.  The  Controversy  be- 
tween Great  Britain  and  the 
Colonies  Reviewed,  224 

Grey,  Lord,  revives  Committee  of 
the  Privy  Council  for  Trade  and 
Plantations  in  1849,  506 

Grotius,  Hugo,  his  statement  in  his 
Peace  and  War,  concerning  Greek 
and  Roman  conception  of  Impe- 
rial power,  44,  472  ;  derivation  of 
"  territory,"'  in  his  Peace  and 
War,  103 

Guadaloupe,  granted  representation 
in  French  General  Assembly,  474  ; 
and  in  French  Parliament,  487, 
488 

Guilds,  their  application  to  coloniz- 
ing operations,  52-54 


H 


Hamilton,  Alexander,  a  Federal- 
Imperialist  in  1774,  282 

Hartley,  David,  his  first  resolutions 
for  conciliation,  315-317  ;  his 
second  resolutions,  335-337 

Hawaii,  administration  of,  572,  573 

Hillsborough,  Lord,  first  Secretary 
of  State  for  the  Colonies,  221  ;  his 
circular  letter  to  the  colonial  gov- 
ernors, 250,  251 

Holland,  policy  of,  respecting  its 
dependencies,  484 

Hooper,  William,  responsible  for  use 
of  the  word  "  disposition  "  to  ex- 
press the  Imperial  power,  349 

Hopkins,  Stephen,  quotation  from 
his  pamphlet.  The  Grievances  of 
the  American  Colonies  Candidly 
Explained,  154-156 


Huskisson,  William,  his  views  con- 
cerning statehood  of  dependen- 
cies, 505 


Illinois  Company,  its  claims  respect- 
ing the  Western  region,  354 

Imperial  Council  (American),  pro- 
posed, 588,  589 

Imperial  Council  (British),  proposi- 
tions concerning,  521-530 

Imperial  Council  (English  and 
British),  of  1606,  under  Virginia 
Charter,  36-38,  46,  47,  51  ;  for 
Ireland,  Lord  Bacon's  proposition 
concerning,  in  1606,  51  ;  under 
Virginia  Charter  of  1609,  55-57  ; 
under  Plymouth  Charter  Company 
of  1620,  63 ;  Privy  Council  as, 
under  Charles  I.,  66,  68;  appointed 
by  Charles  I.  in  1634,  66-68  ;  ap- 
pointed by  Lords  and  Commons 
in  1643,  69  ;  ordinance  appoint- 
ing, quoted,  69-72  ;  the  Council 
of  State  of  1650-1651  as,  75  ;  the 
Council  of  Commerce  of  1650  as, 
(Under- Council),  75,  76;  Lord 
Protector's  Council  of  1653  as, 
77  ;  Council  of  Commerce  of  1655 
as,  (Under-Council),  77,  78  ;  Privy 
Council  as,  under  Cromwell,  78  ; 
Council  of  State  of  1658  as,  78^ 
79 ;  Council  of  Foreign  Planta- 
tions of  1660  as,  79-82  ;  Council 
for  Trade  and  Plantations  of  1760 
as,  (Under-Council),  83-84  ;  Com- 
mittee of  Privy  Council  for  Plan- 
tations Affairs  as,  1670  to  1768, 
S4-S8  ;  Board  of  Commissionera 
for  Trade  and  Plantations  as^ 
(Under-Council),  1696  to  1782, 
84-88  ;  for  India  in  England  es- 
tablished in  1854,  511-514 

Imperial  Council  (French),  its  insti- 
tution and  functions,  480,  481 

Imperial  Council  (German),  its  in- 
stitution and  functions,  494 

Imperial  defence,  problem  of,  in 
British  Empire,  530-534 ;  Ameri- 
can Union  may  adjudicate  contri- 
butions to,  599,  600 

Imperial  Department,  proposed  for 
America,  588 

Imperial  Federation,  movement  for, 
1885-1895,  520 


6l2 


Index 


Imperial  obligations,  recognition  of, 
by  Great  Britain,  534-536  ;  recog- 
nized by  U.  S.  Constitution,  578- 
604 

Imperial  power,  how  described  by 
the  Greeks  and  Romans,  accord- 
ing to  Grotius,  44,  472  ;  how  de- 
scribed in  U.  S.  Constitution,  445- 
473 ;  as  described  by  Congress 
and  the  Supreme  Court,  537-577 

Imperial  Secretariat,  its  functions  as 
described  by  Pownall,  208-223 

Imperial  State,  expression  first  used 
by  Sir  Francis  Bernard,  in  1768, 
191 

Imperial  Unity,  advocated  by  Pow- 
nall in  1764,  191-207 

India,  its  political  relationship  to 
Great  Britain,  508-518  ;  in  effect 
a  Federal  State  under  a  Substi- 
tuted Central  Government,  since 
1833,  508,  509;  Governor-Gen- 
eral of,  in  Council,  his  dispositive 
powers,  510,  511  ;  Council  for,  in 
■  England,  established  in  1854,  511- 

514 

Indiana  Company,  its  claims  respect- 
ing the  Western  region,  354 ; 
memorial  to  Congress  of  1779, 
401 

Indian  tribes  in  America,  instruc- 
tions to  Council  for  Foreign  Plan- 
tations of  1670,  concerning,  83  ; 
British  administration  of,  in  1763, 
142,  143  ;  provisions  respecting, 
in  Franklin's  draft  of  Articles  of 
Confederation,  351  ;  in  Dickin- 
son's draft  of  Articles  of  Confed- 
eration, 352,  353,  357,  358  ;  in 
1784,  acknowledged  the  Ameri- 
can Union  as  their  Sovereign,  405; 
considered  by  Congress  in  1782  to 
be  dependencies  of  the  Union, 
415,  416  ;  relations  with,  in  charge 
of  Secretary  of  War  from  1789  to 
1849,  in  charge  of  Secretary  of 
the  Interior  from    1849  to  1902, 

577 
Indo-China,  French  protectorates  in, 

in  charge  of  Minister  of  Foreign 

Affairs,  480 
Ireland,    administration    of,     from 

1495  to   1600,   28 ;    in  1606,  49  ; 

Lord    Bacon's   advice  concerning 

colonization  of,   50 ;    declared   a 

Province  by  William  III.,  in  1690, 


97,  98  ;  Franklin's  proposal  to  ad- 
mit into  American  Union,  351  ; 
granted  legislative  and  judicial  in- 
dependence in  1782,  498,  499 ; 
effect  of  British  concessions  on, 
499,  500 ;  union  of,  with  Great 
Britain,  1800,  501 
Isle  of  Man,  administration  of,  in 
1606,  49 


J 


James  I.,  proclamation  of,  relating 
to  Virginia,  64 

Jay,  John,  in  1786-7,  regards  Con- 
gress as  the  Sovereign  of  the 
American  Union,  406 

Jefferson,  Thomas,  his  views  in  1774 
concerning  relationship  between 
Great  Britain  and  the  American 
Colonies,  188,  189,  282;  his  views 
concerning  Lord  Chatham's  Bill, 

319,  320  ;  his  draft  of  the  Declar- 
ation on  Taking  up  Arms  of  1775, 

320,  321  ;  his  statement  of  the 
issues  of  the  American  Revolution, 
323,  324  ;  his  views  in  1775  con- 
cerning dependence  on  Great 
Britain,  334  ;  his  draft  of  the  De- 
claration of  Independence  re- 
modelled, 343-347  ;  drafts  Reso- 
lution of  1784  for  the  government 
of  the  Northwest  Territory,  420, 
421  ;  his  views  in  1787  concern- 
ing the  administration  of  the 
Northwest  Territory,  431,  432 

Jellinek,  Dr.  Georg,  quotation  from 

his  work.  Das  Recht  des  Modernen 

Staates,  495 
Jersey,    Island     of,     statehood     of 

American  Colonies  derived  from 

by  Pownall,  lii 
John,  King  of  England,  conception 

of  governmental  power  in  time  of, 

25,  26 
yohnson  v.  Mcintosh   (8   Wheaton, 

589),  decision  of  Supreme  Court 

concerning  political  status  of  the 

Indian  tribes,  547-550 
Judges,    legislative    powers    of,    in 

Northwest  Territory,  434,  435 
Jurisdiction,  meaning  of  in  French 

public  law,  15 
Jurisdiction,  meaning  of,  as  applied 

to  the  power  of  a  State  over  its 

dependencies,  361 


Index 


613 


K 


Kentucky,  provisions  relating  to,  in 
Dickinson's  draft  of  Articles  of 
Confederation,  352,  356,  362,  363 

King  in  Council,  legislative  powers 
of,  264,  265,  273-276,  294,  297 

King  of  France,  power  of,  in  admin- 
istration of  dependencies,  11-18 

King  of  Great  Britain,  power  of,  in 
the  American  Colonies,  131,  263- 
265,  273-276,  292,  293,  341-347 ; 
Address  of  American  Colonies  to, 
of  1774,  288-293;  of  1775,  325, 
326,  340,  341 

Knox,  William,  quotations  from  his 
pamphlet.  The  Controversy  be- 
tween Great  Britain  and  the  Col- 
onies Reviewed,  225-233,  236,  237 


Laband,  Professor  Paul,  quotation 
from  his  work,  Das  Staatsrecht 
des  Deutschen  Reiches,  492-494 

Laisser-aller,  period  of,  in  British 
Colonial  policy,  519,  520 

Land  Companies,  provisions  con- 
cerning, in  Dickinson's  draft  of 
Articles  of  Confederation,  353, 
354.  358  ;  their  rights  adjudicated 
by  Congress  in  1783,  417 

Laud,  William,  Archbishop  of  Can- 
terbury, member  of  Imperial 
Council  of  1634,  66,  67 

Law  of  the  land,  meaning  of,  in 
U.  S.  Constitution,  471 

LeFur,  Louis,  definition  of  the  Fed- 
eral Empire  in  his  ^tat  Fidiral 
et  Confederation  d'^tats,  490 

Legislation,  power  of  Parliament 
over  the  American  Colonies 
claimed  to  be  power  of,  177- 
179 ;  power  of,  distinguished 
from  power  to  regulate  trade  by 
Dickinson,  275-277  ;  power  of, 
distinguished  from  power  of 
disposition  in  U.  S.  Consti- 
tution, 472 ;  power  of  U.  S. 
Congress  over  District  of  Colum- 
bia, a  power  of,  472 

Leonard,  William,  his  letters  under 
the  name  of  Massachusettensis, 
280 

Leroy-Beaulieu,       Paul,     quotation 


from  his  work,  De  la  Colotiisation 
chez  les  Peuples  Modernes,  585 

Lewis,  Sir  George  Cornewall,  his 
Government  of  Dependencies, 
quoted,  95,  96 

Lord  Chatham's  Bill,  quoted,  299- 
304  ;  its  efifect  in  America,  318- 
320 

Lord  North's  Conciliation  Acts,  of 
1778.  377-380  ;  action  of  Congress 
concerning,  380-382 

Lord  North's  Proposals,  of  1775, 
quoted,  309,  310  ;  action  of  Con- 
gress concerning.  327-329 

Lord  Protector's  Council,  of  1653, 
as  Imperial  Council,  77 

Loughborough  v.  Blake  (^  Wheaton, 
317),  Territories  distinguished 
from  ultramarine  dependencies, 
542,  543  ;  views  of  Supreme 
Court  concerning  the  Imperial 
power  expressed  in,   543-546 

Louis  XVI.  of  France,  grants 
West  Indian  Colonies  local  as- 
semblies, 474 

Louis  XVIII.  of  France,  policy  re- 
specting  the    dependencies,  478, 

479. 

Louisiana,  adminstration  of,  1804- 
1805,  539.  540 

Lucas,  C.  P.,  definition  of  "prov- 
ince," 95,  96 


M 


Macaulay,  Thomas  B.,  his  work  in 
India,  50S,  509 

Madagascar,  in  charge  of  French 
Minister  for  Foreign  Affairs,  4S0  ; 
statement  of  French  Government 
regarding  effect  of  annexation  of, 
484-486 

Madison,  James,  declares  American 
Revolution  not  based  on  taxation 
without  representation,  324  ;  in- 
troduces resolution  in  Constitu- 
tional Convention  respecting  de- 
pendencies, 455,  456 

Maine,  grant  of,  by  Charles  I.,  67, 
68 

Manifesto  of  177S  (American),  to 
people  of  the  American  Colonies^ 

387 
Manifesto  of  177S  (British),  to  peo- 
ple of  the  American  Colonies,  386, 

387 


6i4 


Index 


Mansfield,  Chief  Justice,  his  opinion 
in  Campbell  V.  Hall,  295,  296 

Maori  tribes,  principle  of  re- 
sponsible government  extended 
to,  1852,  507 

Martinique,  granted  representation 
in  French  General  Assembly,  474 ; 
represented  in  French  Parliament, 
487,  4S8 

Maryland,  Charter  of  1632  granted, 
66  ;  in  1783  declares  American 
Union  the  Sovereign  of  North- 
west Territory,  405 

Mason,  George,  views  of,  concern- 
ing powers  of  Great  Britain,  270- 
272 

Massachusetts,  Act  of  Cession  of 
November  13,  1784,  415 

Massachusetts  Bay,  Charter  of  1629 
granted,  66,  67  ;  Charter  ratified 
by  Imperial  Council  of  1643,  74  ; 
Charter  forfeited  in  1684,  84 ; 
Charter  of  1691  granted,  85  ;  as  a 
Province  under  Charter  of  1691, 
97  ;  in  1692,  claims  right  to  tax 
itself,  120  ;  claim  granted  by  King 
in  Council  in  1735,  120 

Mast-timber  Act  of  1710  objected 
to  by  American  Colonies,  121 

McAllister  v.  The  United  States 
(141  U.  S.,  174),  view  of  the 
Supreme  Court  concerning  the 
Imperial  power  in,  561,  562 

Mercantile  system,  acquiesced  in 
by  the  American  Colonies,  119, 
120  ;   attacked   by  Adam   Smith, 

1776,  383 

Merivale,  Herman,  quotation  from 
his  Lectures  cm  Colonization  and 
Colonies,  505 

Meyer,  Professor  Georg,  his  viisws 
concerning  statehood  of  the  Ger- 
man dependencies  in  Die  Staats- 
rechtliche  Stellung  der  Deutschen 
Schutzgebiete,  496 

Monroe,  James,  his  plan  for  the 
government  of  the  Northwest 
Territory,  430,  431 

Mormon  Church  v.  The  United 
States  (136  U.  S.,  i),  view  of  the 
Supreme  Court  concerning  the 
Imperial  power  in,  560 

Morris,  Gouverneur,  his  characteris- 
tics, and  his  standing  in  the  Con- 
tinental Congress  of  1778,  378, 
379 ;     his    Observations     on    the 


American  Revolution,  388—395 ; 
in  1784  regards  Congress  as  the 
Sovereign  of  the  American  Union. 
405  ;  his  resolutions  in  the  Con- 
stitutional Convention  respecting 
the  dependencies,  458-465  ;  his 
statement  in  1804  regarding  the 
Imperial  clause  of  the  U.  S. 
Constitution,  538,  539 
Mtirphy  v.  Ramsey  (114  U.  S.,  15), 
view  of  the  Supreme  Court  con- 
cerning the  Imperial  power  in, 
559 


N 


Napoleon  I.,  his  policy  towards  the 
French  Colonies,  477,  478 

National  Bank  v.  County  of  Yank- 
ton (101  U.  S.,  129),  view  of  the 
Supreme  Court  concerning  the 
Imperial  power  in,  558,  559 

Navigation  Act  of  165 1,  its  purpose 
and  effect,  76,  119;  of  1663,  119; 
of  1696,  116,  119 

Needful  rules  and  regulations,  mean- 
ing of,  in  the  Imperial  clause  of 
the  U.  S.  Constitution,  460-462 

New  States,  power  of  admission  of, 
into  American  Union,  465,  466 

New  York,  provisions  of  deed  of 
cession  of  March  i,  1781,  415 

Niles,  Hezekiah,  quotation  from  his 
Principles  and  Acts  of  the  Revolu- 
tion, 258 

North  Carolina,  established  in  1729, 
88 

North,  Lord,  his  proposals  to  the 
American  Colonies,  310,  311  ;  ac- 
tion of  Congress  concerning,  327- 
329 ;  his  views  concerning  re- 
sponsibility of  the  Cabinet  to  the 
House  of  Commons,  338,  339 ; 
his  Conciliation  Acts  of  177S,  377- 
380  ;  action  of  Congress  concern- 
ing, 3S0-382 

Northwest  Territory,  provisions  of 
Dickinson's  draft  of  Articles  of 
Confederation  relating  to,  352. 
354-356,  358-362;  claim  of 
American  Union  to,  403-405  ; 
Resolution  of  October  10,  1780, 
concerning,  412-415  ;  original  re- 
port concerning  administration 
of,  419;  Resolution  of  1784  con- 
cerning, 420-427  ;    difficulties   in 


Index 


615 


Northwest  Territory — Continued 
administration  of,  427-429  ;  Ordi- 
nance of  1787  for  the  government 
of,  429-444 ;  adaptation  of  Ordi- 
nance of  1787  to  U.  S.  Constitu- 
tion by  Act  of  1789,  537,  538  ; 
administration  of,  from  1787  to 
1800,  538 

Norton,  Lord  Chancellor,  quotation 
from  his  article  How  Not  to  Re- 
tain  the  Colonies,  533 


O 


Ohio  Company,  its  claims  respecting 
the  Western  region,  354 

Ordinance,  meaning  of,  as  used  by 
Congress  of  the  Confederation, 
408 

Ordinance  of  1643,  for  regulating 
the  Plantations,  69—72 

Ordinance  of  1787,  for  government 
of  Northwest  Territory,  as  origi- 
nally reported,  433-437 ;  as 
amended  in  Committee  and  by 
Congress,  437-440 ;  Articles  of 
Compact  in,  440-442 ;  Federal- 
Imperialist  theories  evidenced  by 
form  of  Ordinance,  442-444 

Ordonnance,  meaning  of,  in  French 
public  law,  16 

Otis,  James,  quotation  from  The 
Rights  of  the  Colonies  Asserted 
and  Proved,  1 51-15  3 


Parkin,  George  R.,  quotation  from 
his  Imperial  Federation  concern- 
ing an  Imperial  Council,  523-526 

Parliament  (British),  power  of,  as 
claimed  by  Massachusetts  Bay  in 
1646,  113,  114;  power  exercised 
by,  prior  to  1750,  113-117;  Brit- 
ish claims  concerning  power  of, 
1764,  132  ;  in  Tariff  Act  of  1764, 
145  ;  in  Stamp  Act,  149  ;  views  of 
James  Otis  (1764),  151,  152;  of 
Daniel  Dulany  (1765),  153,  154; 
of  Stephen  Hopkins  (1765),  154- 
156  ;  claim  of  American  Colonies 
in  1765,  159-161  ;  Declaratory 
Act  of  U 766,  177-179;  views  of 
John  Dickinson  (1767),  1S0-190 ; 
of  Thomas  Pownall  (1768),  196- 
207  ;  of  William  Knox  and  George 


Grenville  (1769),  224-247  ;  of 
James  Wilson  (1774),  262  ;  of  Ed- 
mund Burke  (1774),  269  ;  of  John 
Dickinson  (1774),  272-279  ;  power 
of,  recognized  by  Continental  Con- 
gress (1774),  284,  286  ;  declared  by 
Lord  Chatham  to  have  a  superin- 
tending power  (1775),  300,  307  ; 
views  of  Edmund  Burke  concern- 
ing power  of  (1775),  338  ;  of  Lord 
North  (1775).  338,  339;  of  the 
Continental  Congress,  339,  340, 
394  ;  modern  views,  532,  533 

Parliamentary  Settlement,  with  the 
American  Colonies,  advocated  by 
Sir  Francis  Bernard,  264,  265 

Pennsylvania,  Charter  granted  in 
1681,  84  ;  position  of  General  As- 
sembly in  1765  regarding  taxation, 

157 

Personality,  dependencies  may  be 
conceived  of  as  possessing  polit- 
ical, 7,  8  ;  claim  of  American  Col- 
onies to  political,  239,  395-399 

Petit,  Edouard,  views  of,  in  his 
Principes  de  Colonisation  et  de 
Legislation  Coloniale,  483 

Petit,  Emilien,  quotation  from  his 
Dissertations  sur  le  Droit  Public 
des  Colonies  Francoises  Espagnoles 
et  Angloises,  17  ;  from  his  Droit 
Public  ou  Gouvernement  des  Col- 
onies Francoises,  23 

Philippine  Islands,  American  admin- 
istration of,  574,  575  ;  in  charge 
of  Secretary  of  War,  577 

Pitt,  William  (Earl  of  Chatham), 
speech  regarding  Stamp  Act,  173- 
175  ;  see  also  Lord  Chatham 

Plan  of  Union,  of  1754,  its  pro- 
visions   regarding    dependencies, 

135-141 
Plantation,  meaning  of,  92 
Plantations    Branch   of    the    Home 

Office  (British),  administration  of 

the  Colonies   by,    from    1782    to 

1786,  500 
Plymouth  Company,  of  1620,  as  an 

Imperial  Council,  63 
Pollock,    Sir   Frederick,    views    of, 

concerning  an   Imperial  Council, 

524,  525 
Popham,  Lord  Chief  Justice,  drafts 

Virginia  Charter  of  1606,  36 
Popular    government,    defined,     i  ; 

implies  unconditional   power,  2  ; 


6i6 


Index 


Popular  government — Continued 
may  exist  in  any  form  of  State,  2- 
4  ;  no  modern  State  wholly  under, 

Porto  Rico,  special  tariff  for,  held 
valid,  562,  563  ;  administration  of, 

574 

Post  Office  Act,  of  1707,  objected  to 
by  American  Colonies,  121 

Pownall,  Thomas,  quotation  from 
his  book.  The  Administration  of 
the  Colonies,  iii,  112,  192,  210- 
220 

Poynings'  Law,  in  Ireland,  its  pro- 
visions, 50 

Pradier-Fodere,  M.,  derivation  of 
' '  territory  "  in  his  Traite  de  Droit 
International  Public,  103 

President  of  the  United  States,  his 
constitutional  powers  respecting 
the  dependencies,  445-453  ;  pow- 
ers actually  exercised  by  him,  574  ; 
properly  the  active  administrator 
of  the  insular  dependencies,  581- 
587.  593,  594 

Privileged  Companies  (English), 
their  institution  and  objects,  52- 

54 
Privileged      Companies      (French), 
their  institution  and  objects,   18, 

19 

Privy  Council,  institution  of,  26  ;  as 
Imperial  Council  under  Charles 
I.,  66,  68  ;  under  Cromwell,  78  ; 
Committee  of,  under  Charles  II., 
as  Imperial  Council,  84  ;  Commit- 
tee of,  for  Plantations  Affairs, 
continued  from  1675  until  1782  as 
Imperial  Council,  88  ;  same  Com- 
mittee revived  in  1784,  500 ; 
ceased  to  exist  in  1800,  501  ; 
same  Committee  temporarily  re- 
vived in  1849,  506 

Property,  dependencies  as,  of  the 
State,  247,  248  ;  meaning  of,  as 
applied  to  dependencies,  361  ; 
meaning  of,  in  Imperial  clause  of 
U.  S.  Constitution,  463,  464 

Protectorate  over  uncivilized  tribes, 
or  constitutional  protectorate, 
meaning  of,  353 

Providence  Plantations,  Charter  of 
1644,  i^^s  provisions,  72,  73 

Province,  meaning  of,  94-100 

Pym,  John,  member  of  Imperial 
Council  of  1643,  69-71,  73 


Quebec  Act,  of  1774,  objections  of 
American  Colonies  to,  259 


R 


Raleigh,  Sir  Walter,  as  Lord  Pro- 
prietor of  Carolina,  29,  30 

Regulation,  meaning  of,  in  the  pub- 
lic law,  139-141 

Regulation,  plenary  power  of, 
included  in  disposition,  419-444 

Regulation  of  trade,  power  of,  dis- 
tinguished from  legislation,  275- 
277 

Reichsland  distinguished  from 
Schutzgebiete  by  German  Govern- 
ment, 491 

Representation  of  American  Col- 
onies in  Parliament,  regarded  by 
them  as  impracticable,  161,  162  ; 
views  of  Sir  Francis  Bernard 
(1764),  171-173  ;  views  of  Thomas 
Pownall  (1768),  197-207 

Representation  on  the  State  of  the 
Colonies,    of    1754,    quoted,    136, 

137 

Resolution,  meaning  of,  as  used  by 
Congress,  408,  409 

Resolutions  of  Congress,  of  1765, 
concerning  Stamp  Act,  159-166  ; 
of  1774,  declaring  rights  and 
grievances,  283-285  ;  of  1775, 
concerning  Lord  North's  pro- 
posals, 327-329,  332,  333 ;  of 
September  6,  1780,  recommend- 
ing cessions,  412  ;  of  October  10, 
1780,  regarding  disposition  of  the 
Western  region,  412-415  ;  of 
1784,  for  the  government  of  the 
Northwest  Territory,  420-427 

Responsible  government,  definition 
of  by  Lord  Durham,  1S39,  502, 
503  ;  Canadian  view  of,  in  1841, 
503,  504 ;  principle  of,  univer- 
salized, 1854-1902,  507,  508,  518; 
application  of  principle  of,  to  In- 
dia, 518 

Reunion,  Island  of,  represented  in 
French  Parliament,  487,  488 

Rhode  Island,  Charter  of  1663 
granted,  82 

Rose  V.  Himely  (4  Cranch,  241), 
view  of  Supreme  Court  regarding 
colonial  relationship  in,  508 


Index 


61/ 


Rougier,  J.  C.  Paul,  quotation  from 

his  Pr/cis  de  Legislation  et  d'Econ- 

omie  Coloniale,  489 
Rules  and  regulations  respecting  the 

dependencies,     meaning     of,     in 

U.  S.  Constitution,  459 


Salisbury,  Lord,  views  of,  concern- 
ing Imperial  Federation,  520,  521 

San  Domingo,  granted  representa- 
tion in  French  General  Assembly, 
474 

Sandys,  Sir  Edwin,  assists  in  argu- 
ment of  Case  of  the  Postnati,  35  ; 
his  actions  as  Treasurer  of  Vir- 
ginia Company,  58-62 

Schutzgebiete,  administration  of,  by 
Germany,  493-495 

Scott  \.  Sandford  {i()  Howard,  393), 
view  of  the  Supreme  Court  con- 
cerning the  Imperial  power  in, 
556,  557  ' 

Secretary  of  the  Interior  (American), 
acting  Secretary  for  the  Territo- 
ries since  1873,  576 

Secretary  of  State  for  the  Colonies, 
in  Great  Britain,  proposed  by 
Pownall,  1764,  208-221  ;  ap- 
pointed in  1768,  221  ;  office  abol- 
ished in  1782,  498  ;  Secretary  of 
State  for  Southern  Department 
as  acting,  1782-1794,  209,  210, 
500,  501  ;  Secretary  of  State  for 
War  as  acting,  1794-1854,  501  ; 
office  re-established,  1854,  507 

Secretary  of  State  (for  Foreign  Af- 
fairs), (American),  acting  Secre- 
tary of  State  for  the  Territories, 
1787-1873,  576 

Secretary  of  State  for  the  South- 
ern Department  (British),  acting 
Secretary  of  State  for  the  Colonies 
until  1768,  and  from  1782  to  1794, 
209,  210,  500,  501 

Secretary  of  State  for  War  (British), 
acting  Secretary  of  State  for  the 
Colonies,  1794-1S54,  501 

Secretary  of  War  (American),  in 
charge  of  Indian  Affairs,  17S9- 
1894,  in  charge  of  affairs  with 
Philippine  Islands,  1899-1902,  577 

Seeley,  Sir  John  R.,  quotation  from 
his  Expansion  of  England,  re- 
garding India,  514-516 


Sere  v.  Pilot  (6  Cranch,  366),  views 
of  Supreme  Court  concerning  the 
Imperial  power  in,  542 

Slavery,  effect  of  abolition  of,  in 
French  dependencies,  476 

Smith,  Adam,  views  of,  concerning 
colonial  relationship,  in  his  In- 
quiry into  the  Nature  and  Causes 
of  the  IVealtk  of  Nations,  383 

South  Carolina  established  in  1729, 
88 

Sovereignty,  meaning  of,  as  applied 
to  relationship  of  the  American 
Union  to   its  dependencies,  401- 

407 

Stamp  Act  of  1765,  its  provisions 
and  their  effect,  148-150;  repeal 
of,  176 

Stamp  Act  Congress,  its  proceed- 
ings, 158-168 

State,  political  personality  of  the, 
6  ;  power  over  external  lands  and 
populations  as  dependencies,  6-8 

Statehood  of  the  American  Colonies, 
a  fact  under  American  Constitution 
of  1750,  125  ;  resolution  of  Stamp 
Act  Congress  a  demand  for,  161, 
162  ;  effect  of  a  criticism  of  Wil- 
liam Knox  in  strengthening  the 
American  position,  23S.  239  ; 
American  ultimatum  of  1774  a 
demand  for,  290-293,  329-333 

Statehood  in  American  Union, 
American  dependencies  not  neces- 
sarily entitled  to,  468 

Stengel,  Carl  von,  his  views  con- 
cerning statehood  of  the  German 
dependencies  in  his  book,  Die 
Deutschen  Schutzgebiete,  496 

Subjection,  declared  by  Continental 
Congress  to  be  conditional,  391- 
395  ;  meaning  of,  in  a  Federal 
Empire,  395 

Superintendence,  used  by  Daniel 
Dulany  in  1765  to  express  the  Im- 
perial power,  154  ;  used  by  Burke 
in  1774,  269  ;  used  by  Lord  Chat- 
ham in  1775,  299-304 ;  used  by 
Committee  of  the  Congress  of  the 
Confederation  in  1782,  404 

Supreme  Court  of  the  United  States, 
its  views  concerning  the  Imperial 
power  of  the  American  Union, 
542-552,  556-572  ;  its  power  as 
the  Supreme  Court  of  the  Ameri- 
can Empire,  597 


6i8 


Index 


Tariff  Act,  of  1764,  its  provisions  and 
effect,  144-148  ;  of  1767,  179,  180 

Tariff -Union  between  American 
Union  and  its  dependencies  per- 
missible, 598,  599 

Taxation,  of  American  Colonies, 
British  claims  yielded  by  King  in 
Council  in  1735,  120;  internal 
andj  external,  the  Pennsylvania 
view  of,  in  1765,  157  ;  power  of 
Parliament  in  matter  of,  denied, 
162-164  ;  American  Colonies  con- 
sider purpose  of,  immaterial,  163, 
164 ;  views  of  William  Pitt  (Earl 
of  Chatham)  in  1766,  173-175  ; 
internal  and  external,  distinction 
advocated  by  Pitt,  175  ;  internal 
and  external,  distinction  advo- 
cated by  Franklin  in  1766,  175, 
176  ;  views  of  John  Dickinson  in 
1767,  186-188  ;  views  of  Thomas 
Pownallin  1768,  197-207;  internal 
and  external,  argument  of  Wil- 
liam Knox,  228,  229  ;  for  regula- 
tion of  trade  and  for  revenue, 
argument  of  William  Knox,  1769, 
230-236 ;  question  concerning 
power  of,  not  the  main  issue  of 
American  Revolution,  323,  324 

Tea,  connection  of  East  India  Com- 
pany with  importation  of,  253- 
257  ;  Tariff  Acts  relating  to,  254 

Territorial  Delegate  in  Congress, 
same  as  Colonial  Agent,  422 

Territories  of  the  United  States,  dis- 
tinguished by  Supreme  Court  from 
other  dependencies,  542,  543  ;  re- 
lations with,  in  charge  of  Secre- 
tary of  State  (for  Foreign  Affairs). 
1787-1873,  576  ;  in  charge  of  Sec 
retary  of  the  Interior,  1873-1902, 
576;  Congressional  administra. 
tion  of,  proper,  591-593 

Territory,  meaning  of,  103-10S ; 
meaning  of,  in  U.S.  Constitution, 
462,  463 

Thring,  Lord,  views  of,  concerning 
an  Imperial  Council,  525,  526 

Thurlow,  Attorney-General,  lan- 
guage used  in  Campbell  v.  Hall 
concerning  power  of  the  King  in 
the  Empire,  295 

Todd,  Alpheus,  quotations  from  his 
book.  Parliamentary  Government 


in  the  British  Colonies,  530,  531, 

533.  534 

Treaties  of  Alliance  and  Commerce 
with  France,  of  1778,  their  recog- 
nition of  the  American  Empire, 
374-377 

Treaty  of  Paris,  of  1763,  provisions 
respecting  America,  141,  142 

Tunis,  in  charge  of  French  Minister 
of  Foreign  Affairs,  480  ;  a  consti- 
tutional protectorate  of  France, 
4S8 


U 


Ulster,  colonization  of,  by  Great 
Britain,  49,  54 

Ultimatum  of  the  American  Colo- 
nies to  Great  Britain,  1774,  280- 

293 
United  States,  meaning  of,  in  U.  S. 
Constitution,  469 


Vandalia  Company,  its  claims  re- 
specting the  Western  region,  354  ; 
its  memorial  to  Congress,  of  1779, 
401 

Vane,  Sir  Henry,  member  of  Impe- 
rial Council  of  1643,  69-71,  73 

Varro,  M.  Terentius,  his  derivation 
of  "  territory,"  104 

Vattel,  quotation  from  his  Law  of 
Nations,  13,  14,  140 

Vermont,  provisions  concerning,  in 
Dickinson's  draft  of  Articles  of 
Confederation,  352,  356,  363  ;  its 
rights  adjudicated  by  Congress  in 
1784,  417 

Virginia,  characteristics  of  Charter 
of  1606,  37-49  ;  Charter  of  1609, 
its  purpose  and  effect,  55-57  ; 
Charter  of  1611,  its  purpose  and 
effect,  57,  58  ;  Ordinance  of  1621, 
recognizing  statehood  of,  59-61  ; 
forfeiture  of  Charters  in  1624,  62  ; 
called  a  "  Dominion"  until  1700, 
thenceforward  a  "  Province,"  99  ; 
Articles  of  Surrender  of  1651,  115 

W 

Wabash  Company,  its  claims  re- 
specting the  Western  region,  354 


Index 


619 


Washington,  George,  views  of,  con- 
cerning the  colonial  relationship, 
270-273 

West  India  Islands,  Franklin's  pro- 
posal to  admit  into  the  American 
Union,  351 

Wilkinson,  Spencer,  quotation  from 
The  Nation^ s  A  wakening,  534-536 

William  the  Conqueror,  conception 
of  governmental  power  in  time 
of.  25 

William  III.,  of    England,  his  ad- 


ministration of  colonial  affairs, 
84-88 

Williams,  Roger,  agent  of  Provi- 
dence Plantations,  68 

Wilson,  James,  quotation  from  his 
pamphlet.  Considerations  on  the 
Nature  and  Extent  of  the  Legis- 
lative Authority  of  the  British 
Parliament,  261-263  \  his  reply 
to  John  Dickinson,  264,  265 

Wodehouse,  Sir  P.,  in  1870  regards 
British  Empire  as  temporary,  519 


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